A STAFF REPORT TO THE NATIONAL
COMMISSION ON THE CAUSES AND,
PREVENTION OF VIOLENCE /
PREPARED BY /
James S. Campbell /
Joseph R. Sahid /
The White House
June 10, 1968
EXECUTIVE ORDER #11412
ESTABLISHING A NATIONAL COMMISSION ON
THE CAUSES AND PREVENTION OF VIOLENCE
By virtue of the authority vested in me as President of the United States, it
is ordered as follows:
SECTION 1. Establishment of the Commission, (a) There is hereby
established a National Commission on the Causes and Prevention of Violence
(hereinafter referred to as the "Commission").
(b) The Commission shall be composed of:
Dr. Milton Eisenhower, Chairman
Congressman Hale Boggs Senator Roman Hruska
Archbishop Terence J. Cooke Albert E. Jenner, Jr.
Ambassador Patricia Harris Congressman William M. McCuDoch
Senator Philip A. Hart *Dr. W. Walter Menninger
Judge A. Leon Hjgginbotham *Judge Ernest William McFarland
Erk Hoffer *Leon Jaworski
SECTION 2. Functions of the Commission. The Commission shall
investigate and make recommendations with respect to:
(a) The causes and prevention of lawless acts of violence in our society,
including assassination, murder and assault;
(b) The causes and prevention of disrespect for law and order, of
disrespect for public officials, and of violent disruptions of public order by
individuals and groups; and
(c) Such other matters as the President may place before the Commis-
sion.
SECTION 4. Staff of the Commission.
SECTION 5 . Cooperation by Executive Departments and Agencies.
(a) The Commission, acting through its Chairman, is authorized to
request from any executive department or agency any information and
assistance deemed necessary to carry out its functions under this Order. Each
department or agency is directed, to the extent permitted by law and within
the limits of available funds, to furnish information and assistance to the
Commission.
SECTION 6. Report and Termination. The Commission shall present its
report and recommendations as soon as practicable, but not later than one
year from the date of this Order. The Commission shall terminate thirty days
following the submission of its final report or one year from the date of this
Order, whichever is earlier.
S/Lyndon B. Johnson
* Added by an Executive Order June 21 , 1968
The White House
May 23, 1969
EXECUTIVE ORDER #11469
EXTENDING THE LIFE OF THE NATIONAL COMMISSION
ON THE CAUSES AND PREVENTION OF VIOLENCE
By virtue of the authority vested in me as President of the United States,
Executive Order No. 1 1412 of June 10, 1968, en titled "Establishing a National
Commission on the Causes and Prevention of Violence," is hereby amended
by substituting for the last sentence thereof the following: "The Commission
shall terminate thirty days following the submission of its final report or on
December 10, 1969, whichever is earlier."
S/ Richard Nixon
LAW AND ORDER
RECONSIDERED
Report of the Task Force on
Law and Law Enforcement
To
The National Commission
on the Causes and
Prevention of Violence
JAMES S. CAMPBELL
JOSEPH R. SAHID
DAVID P. STANG
NATIONAL COMMISSION
ON THE CAUSES AND PREVENTION OF VIOLENCE
For sale by the Superintendent of Documents. U.S. Government Printing Office
Washington. D.C. 20402 Price $2.50
From the collection of the
2 n
Prelinger
v JLjibrary
p
San Francisco, California
2006
Official editions of publications of the National Commission on
the Causes and Prevention of Violence may be freely used, dupli-
cated or published, in whole or in part, except to the extent that,
where expressly noted in the publications, they contain copy-
righted materials reprinted by permission of the copyright
holders. Photographs may have been copyrighted by the owners,
and permission to reproduce may be required.
STATEMENT ON THE STAFF STUDIES
The Commission was directed to "go as far as man's knowl-
edge takes" it in searching for the causes of violence and the
means of prevention. These studies are reports to the Commis-
sion by independent scholars and lawyers who have served as
directors of our staff task forces and study teams ; they are not
reports by the Commission itself. Publication of any of the re-
ports should not be taken to imply endorsement of their contents
by the Commission, or by any member of the Commission's staff,
including the Executive Director and other staff officers, not
directly responsible for the preparation of the particular report.
Both the credit and the responsibility for the reports lie in each
case with the directors of the task forces and study teams. The
Commission is making the reports available at this time as works
of scholarship to be judged on their merits, so that the Com-
mission as well as the public may have the benefit of both the
reports and informed criticism and comment on their contents.
Dr. Milton S. Eisenhower
Chairman
iii
TASK FORCE DIRECTORS
James S. Campbell
Joseph R. Sahid
David P. Stang
COMMISSION STAFF OFFICERS
Lloyd N. Cutler
Executive Director
Thomas D. Barr
Deputy Director
James F. Short, Jr.
Marvin E. Wolfgang
Co-Directors of Research
James S. Campbell
General Counsel
William G. McDonald
Administrative Officer
Joseph Laitin
Director of Information
Ronald Wolk
Special Assistant to the Chairman
NATIONAL COMMISSION
ON THE CAUSES AND
PREVENTION OF VIOLENCE
Milton S. Eisenhower
Chairman
iv
ACKNOWLEDGEMENTS
We are principally indebted to the dozens of scholars, prac-
ticing lawyers and other willing persons whose generous efforts,
added on to already busy schedules, have made this Report
possible. The names of those who have participated in the prepa-
ration of this Report are listed on pages 599 to 605 in three
categories: contributors, consultants, and advisors.
Contributors are those whose papers appear as chapters (or
as the principal source of a chapter) in the Report. Contribu-
tors are also credited at the beginning of the particular chapters
for which they are responsible.
Consultants are those who submitted research papers which
served as the building blocks for chapters or as important back-
ground pieces. Many of these are also credited at the beginning
of the relevant chapters.
Advisors are those who provided assistance to us in evaluating
and reviewing various chapters in draft form.
We are also in the debt of a research staff of devoted workers,
led by Dale L. Smith, who spent long hours in libraries and
on the phone conducting interviews, verifying source materials,
and searching for hard-to-find facts. Their names appear on
page 606.
We especially appreciate the contributions of Carol A.
Honus and our other secretaries who typed, retyped and kept
track of a tremendous volume of material of which this book is
only the ultimate distillation. Their names also appear on
page 606.
We wish to acknowledge the contribution of George L. Saun-
ders, Jr., who led the Task Force during its early months and
helped lay a foundation for its later work. Acknowledgement is
also due to Leroy D. Clark for his assistance during this period.
Finally, we wish to thank all the Staff Officers of the
Commission for their help, and especially to mention the inval-
uable assistance of Lloyd N. Cutler, the Commission's Executive
Director, who took the time to review the several drafts of
our Report, to offer many helpful suggestions, and to provide
us with encouragement and support at all times.
As the planners and editors of this Report, we alone bear the
responsibility for its final form, and all those who contributed
to it are fully entitled to refer blame for its errors to our
own wrong-headedness or oversight.
James S. Campbell
Joseph R. Sahid
David P. Stang
PREFACE
From the earliest days of organization, the Chairman, Commissioners,
and Executive Director of the National Commission on the Causes and
Prevention of Violence recognized the importance of research in accomplish-
ing the task of analyzing the many facets of violence in America. As a
result of this recognition, the Commission has enjoyed the receptivity,
encouragement, and cooperation of a large part of the scientific community
in this country. Because of the assistance given in varying degrees by scores
of scholars here and abroad, these Task Force reports represent some of the
most elaborate work ever done on the major topics they cover.
The Commission was formed on June 10, 1968. By the end of the month,
the Executive Director had gathered together a small cadre of capable young
lawyers from various Federal agencies and law firms around the country.
That group was later augmented by partners borrowed from some of the
Nation's major law firms who served without compensation. Such a pro-
fessional group can be assembled more quickly than university faculty
because the latter are not accustomed to quick institutional shifts after
making firm commitments of teaching or research at a particular locus.
Moreover, the legal profession has long had a major and traditional role in
Federal agencies and commissions.
In early July a group of 50 persons from the academic disciplines of
sociology, psychology, psychiatry, political science, history, law, and biology
were called together on short notice to discuss for two days how best the
Commission and its staff might proceed ot analyze violence. The enthusiastic
response of these scientists came at a moment when our Nation was still
suffering from the tragedy of Senator Kennedy's assassination.
It was clear from that meeting that the scholars were prepared to join
research analysis and action, interpretation, and policy. They were eager to
present to the American people the best available data, to bring reason to
bear where myth had prevailed. They cautioned against simplistic solutions,
but urged application of what is known in the service of sane policies for the
benefit of the entire society.
Shortly thereafter the position of Director of Research was created. We
assumed the role as a joint undertaking, with common responsibilities. Our
function was to enlist social and other scientists to join the staff, to write
papers, act as advisers or consultants, and engage in new research. The
decentralized structure of the staff, which at its peak numbered 100, required
research coordination to reduce duplication and to fill in gaps among the
original seven separate Task Forces. In general, the plan was for each Task
Force to have a pair of directors: one a social scientist, one a lawyer. In a
number of instances, this formal structure bent before the necessities of
available personnel but in almost every case the Task Force work program
relied on both social scientists and lawyers for its successful completion. In
addition to our work with the seven original Task Forces, we provided con-
sultation for the work of the eighth "Investigative" Task Force, formed
originally to investigate the disorders at the Democratic and Republican
National Conventions and the civil strife in Cleveland during the summer of
1968 and eventually expanded to study campus disorders at several colleges
and universities.
Throughout September and October and in December of 1968 the Com-
mission held about 30 days of public hearings related expressly to each of
the Task Force areas. About 100 witnesses testified, including many scholars,
Government officials, corporate executives as well as militants and activists
of various persuasions. In addition to the hearings, the Commission and the
staff met privately with scores of persons, including college presidents,
religious and youth leaders, and experts in such areas as the media, victim
compensation, and firearms. The staff participated actively in structuring
and conducting those hearings and conferences and in the questioning of
witnesses.
As Research Directors, we participated in structuring the strategy of
design for each Task Force, but we listened more than directed. We have
known the delicate details of some of the statistical problems and computer
runs. We have argued over philosophy and syntax; we have offered bibliog-
raphical and other resource materials, we have written portions of reports
and copy edited others. In short, we know the enormous energy and devotion,
the long hours and accelerated study that members of each Task Force have
invested in their labors. In retrospect we are amazed at the high caliber and
quantity of the material produced, much of which truly represents, the best
in research and scholarship. About 150 separate papers and projects were
involved in the work culminating in the Task Force reports. We feel less that
we have orchestrated than that we have been members of the orchestra, and
that together with the entire staff we have helped compose a repertoire of
current knowledge about the enormously complex subject of this Commission.
That scholarly research is predominant in the work here presented is
evident in the product. But we should like to emphasize that the roles which
we occupied were not limited to scholarly inquiry. The Directors of Research
were afforded an opportunity to participate in all Commission meetings. We
engaged in discussions at the highest levels of decision-making and had great
freedom in the selection of scholars, in the control of research budgets, and
in the direction and design of research. If this was not unique, it is at least
an uncommon degree of prominence accorded research by a national
commission.
There were three major levels to our research pursuit: (1) summarizing
the state of our present knowledge and clarifying the lacunae where more or
new research should be encouraged; (2) accelerating known ongoing research
so as to make it available to the Task Forces; (3) undertaking new research
projects within the limits of time and funds available. Coming from a
university setting where the pace of research is more conducive to reflection
and quiet hours analyzing data, we at first thought that completing much
meaningful new research within a matter of months was most unlikely. But
the need was matched by the talent and enthusiasm of the staff, and the Task
Forces very early had begun enough new projects to launch a small univer-
sity with a score of doctoral theses. It is well to remember also that in each
volume here presented, the research reported is on full public display and
thereby makes the staff more than usually accountable for their products.
One of the very rewarding aspects of these research undertakings has
been the experience of minds trained in the law mingling and meshing,
sometimes fiercely arguing, with other minds trained in behavioral science.
The organizational structure and the substantive issues of each Task Force
required members from both groups. Intuitive judgment and the logic of
argument and organization blended, not always smoothly, with the methodol-
ogy of science and statistical reasoning. Critical and analytical faculties
were sharpened as theories confronted facts. The arrogance neither of
ignorance nor of certainty could long endure the doubts and questions of
interdisciplinary debate. Any sign of approaching the priestly pontification
viii
of scientism was quickly dispelled in the matrix of mutual criticism. Years
required for the normal accumulation of experience were compressed into
months of sharing ideas with others who had equally valid but differing
perspectives. Because of this process, these volumes are much richer than
they otherwise might have been.
Partly because of the freedom which the Commission gave to the Directors
of Research and the Directors of each Task Force, and partly to retain the
full integrity of the research work in publication, these reports of the Task
Forces are in the posture of being submitted to and received by the Commis-
sion. These are volumes published under the authority of the Commission,
but they do not necessarily represent the views or the conclusions of the
Commission. The Commission is presently at work producing its own report,
based in part on the materials presented to it by the Task Forces. Commis-
sion members have, of course, commented on earlier drafts of each Task
Force, and have caused alterations by reason of the cogency of their remarks
and insights. But the final responsibility for what is contained in these
volumes rests fully and properly on the research staffs who labored on them.
In this connection, we should like to acknowledge the special leadership of
the Chairman, Dr. Milton S. Eisenhower, in formulating and supporting the
principle of research freedom and autonomy under which this work has
been conducted.
We note, finally, that these volumes are in many respects incomplete and
tentative. The urgency with which papers were prepared and then integrated
into Task Force Reports rendered impossible the successive siftings of data
and argument to which the typical academic article or volume is subjected.
The reports have benefited greatly from the counsel of our colleagues on the
Advisory Panel, and from much debate and revision from within the staff. It
is our hope, that the total work effort of the Commission staff will be the
source and subject of continued research by scholars in the several dis-
ciplines, as well as a useful resource for policy-makers. We feel certain that
public policy and the disciplines will benefit greatly from such further work.
To the Commission, and especially to its Chairman, for the opportunity
they provided for complete research freedom, and to the staff for its prodi-
gious and prolific work, we who were intermediaries and servants to both,
are most grateful.
James F. Short, Jr. Marvin E. Wolfgang
Directors of Research
IX
CONTENTS
Page
Introduction xix
PART ONE THE RULE OF LAW _ 1
Chapter 1 The Rule of Law _ 3
The Evolution of Social Order _ 3
The Nature of the Rule of Law 5
The Rule of Law in America Today 8
Chapter 2 Disobedience to Law 13
The American Ideal 14
Our Contemporary Discontents 15
Moral Justifications for Disobedience to Law:
The Needs of the Individual 17
The Problem of Contagion: The Needs of Society 19
Conclusion 22
PART TWO INSTITUTIONS OF THE POLITICAL
AND SOCIAL ORDER 25
Chapter 3 Law and the Grievances of the Poor _ 27
The Poor and the Bureaucracy _ 30
The Courts and the Poor 34
The Right to Counsel __. 37
Conclusion _ 44
Chapter 4 Government and the "Forgotten Man." 53
Who is the Forgotten Man? _ 54
Profile of the Forgotten Man 56
Portraits of the Forgotten Man _ 58
Attitudes of the Forgotten Man : Historical Sources 66
Attitudes of the Forgotten Man : Personal Sources _ 70
The Forgotten Man's Case Against Government _ 73
Conclusion . 75
Chapter 5 American Society and the Radical Black
Militant 81
The Nature of Radical Black Militancy __. 81
xi
Page
Cultural Autonomy 82
Political Autonomy 83
Self-Defense 84
Underlying Causes of Radical Black Militancy _ 85
The Institution of Slavery _ 86
Segregation in the Aftermath of Slavery _ 88
The Rise of the Urban Ghetto _ 90
Direct Causes of Radical Black Militancy _ 92
The Political Cause _ 92
The Ideological Cause _ 96
The Economic Cause _ 99
The Psychological Cause _ 105
Responses to Radical Black Militancy _ 108
Chapter 6 The Responsiveness of Local Government _ 113
The Shortcomings of the Municipal Reform
Movement 114
The Movement for Citizen Participation and
Community Control _ 117
The Movement for Modernization and Consolidation. 118
Political Efficacy and Trust _ 122
Efficacy, Trust and Citizen Participation _ 125
Conclusion _ 127
Chapter 7 The Electoral Process and the Public Will _ 131
The National Nominating Convention _ 131
The Political Campaign _ 142
The Election _ 151
Conclusion _ 157
Chapter 8 Congress and the Public Will _ 161
Seniority and the Committee System _ 163
The Senate Filibuster _ 167
The Lobby ___ 170
Congressional Reforms _ 172
Conclusion _ 174
Chapter 9 The Family and Violence _ 177
Formation of the Child's Moral Personality _ 178
Socialization in the Family _ 181
Conflicts in the Socialization Process _ 183
What Can Be Done? _ 187
Chapter 10 The Public School and the Children of
Poverty 191
Public Education Today _ 192
xii
Page
The Challenge to American Education _ 195
Conclusion _ 199
Chapter 11 The Church and the Urban Crisis _ 201
Lack of "Relevance" To Whom? _ 202
The Church as Bridge-Builder _ 204
National Consensus : Pluralism and Ecumenism _ 207
Conclusion _ 209
Chapter 12 The Reform of the University _ 211
Campus Unrest and Its Causes _ 212
The Need for Reform _ 217
Undergraduate Teaching _ 217
Student Life _ 218
The University's Role in Society _ 220
The University Tradition in America 221
American Higher Education _ 225
University Governance _ 231
Conclusion 234
A Portfolio of Lithographs on Crime and Violence 235
PART THREE THE AGENCIES OF LAW
ENFORCEMENT . ___ 263
Chapter 13 The Nonsystem of Criminal Justice _ 265 /
The System : Theory vs. Practice _ 266 ^
Criminal Sanctions as a Solution to Urban Problems 270
Scope of Sanctions 270
Relationship to Civil Programs 271
Guidelines for Criminal Justice Reform _ 273
The Criminal Justice Agency _ 275
Private Citizen Involvement . 278
National Criminal Justice Consulting Center 279
Local Citizen Organizations . 281
Conclusion _ 284
Chapter 14 The Police and Their Problems _ 285
Duties of the Police _ 286
Manpower Limitations _ 286
Financial Limitations _ 287
Police Conflicts With Other Criminal Justice
Agencies 288
Police Role Conflicts _ 290
Police Ineffectiveness _ 292
Police Politicization _ 293
Some Suggested Solutions _ 295
xiii
Page
The Police and Political Violence 295
The Patrolman and the People _ 296
Improving Police-Community Relations _ 298
Minority Recruitment 304
Conclusion . 305
Chapter 15 Official Responses to Mass Disorder I:
Current Social Control _ 309
Major Problems of Riot Control 309
Civil Disorders Commission Recommendations _ 313
Progress Since Civil Disorders Commission Report _ 316
The National Guard _ 318
Local Law Enforcement Authorities 322
The Role of the Private Individual _ 325
The Problem of Manpower and Effective Response _ 326
Public Safety Radio Communication _ 329
Conclusion 330
Chapter 16 Official Response to Mass Disorder II :
The Circuit of Violence A Tale of
Two Cities __ 333
The Dynamics of Polarization _ 334
Case Study I : The Labor Movement _ 340
Case Study II : Chicago and Washington A Tale
of Two Cities _ 343
A Program for the Future _ 351
A Proposed Federal Remedy _ 360
Chapter 17 Securing Police Compliance With Con-
stitutional Limitations: The Exclu-
sionary Rule and Other Devices _ 365
The Exclusionary Rule _ 366
Damage Remedies Under State Law 370
Damage Remedies Under Federal Law _ 375
Injunction 379
Criminal Sanctions _ 381
Internal Review 383
Civilian Review Boards _ 386
The Ombudsman _ 391
Conclusion and Recommendations 392
Chapter 18 Citizen Involvement in Law Enforcement _ 411
The Indianapolis Experience _ 411
The Danger of Vigilantism _ 413
The Informed Citizen _ 413
XIV
Page
Citizen 'Programs _ 415
The Involvement of the Individual _ 422
Conclusion _ 424
Chapter 19 The Bail Problem : Release or Detention
Before Trial _ 427
The Origins of Money Bail 427
Bail Today 430
Bail and the Poor _ 430
Bail and the Unpopular _ 432
The Bondsman 433
Its Effect on the Administration of Justice _ 435
Alternatives to Bail 437
Release on Personal Recognizance _ 437
Summons ^40.
The Bail Reform Act of 1966 - 442^
Its Promise 442
Its Problems _ 444
The Problem of Dangerousness : Some Proposed
Solutions 448
Conclusion 458
Appendix: Proposed Legislation 459
Chapter 20 The Constitution and Rights of the Accused 469
The View of the Critics 469
Miranda and Its Antecedents 471
The Impact of the Miranda Interrogation Rules 475
"Voluntariness" and Police Interrogation - 480
Equal Protection in the Station House _ 484
The Privilege Against Self-Incrimination : Be-
ginning of a Reexamination _ 485
Judge Friendly's Amendment _ 493
Summary and Conclusion 499
Chapter 21 -Court Management and the Administra-
tion of Justice _ 509
What Is Court Management? 510
Court Management Today _ 511
Putting Effective Management Into the Admin-
istration of Justice 513
American Bar Association Special Com-
mittee on Standards for the Administra-
tion of Criminal Justice 514
Page
Seed Money For the Reform of Courts
National Court Assistance Act 516
Court Management, 1970-75: A Suggested
Agenda for Public Policy _ 518
Court Executives _ 518
Court Studies . 519
Law Schools and Centers for Administra-
tion of Justice _ 521
Bar Associations 522
Laymen and Legislators _ 522
Conclusion . 523
Chapter 22 The Administration of Justice Under
Emergency Conditions _ 527
Arrest to First Court Appearance _ 529
The Mass Civil Disorder _ 529
The Mass Political Demonstration _ 531
The Kerner Commission Recommendations _ 531
First Court Appearance _ 532
The Mass Civil Disorder 532
The Mass Political Demonstration _ 535
Initial Charging _ 536
The Mass Civil Disorder 536
The Mass Political Demonstration 537
Bail _ 538
The Mass Civil Disorder _ 538
The Mass Political Demonstration __ 542
First Court Appearance (Including Charging
and Bail) : Recommendations __ 543
After the Emergency: The Disposition of the
Prosecutions _ 544
Recommendations 546
Conclusion . 547
Chapter 23 The Problem of Overcriminalization _ 551
Three Categories of Overcriminalization 552
The Costs of Overcriminalization _ 554
The Consequences of Repeal _ 557
The Morals Statutes _ 557
The Illness Statutes 558
The Nuisance Statutes _ 561
Conclusion _ 566
XVI
Page
Chapter 24 Problems of the Corrections System - 571
The Inability of Corrections to Correct 572 /
The Horror of Corrections 576
Cruel Punishment and the Failure of the Courts 585
Alternatives to Incarceration _ 587
Rehabilitation Programs in Institutions _ 591
Conclusion 595
Task Force on Law and Law Enforcement: Contributors,
Consultants, Advisers, and Staff 599
"Man's effort to control violence has been one part, a major
part, of his learning to live in society. The phenomenon of
violence cannot be understood or evaluated except in the context
of that larger effort." From the Progress Report of the National
Commission on the Causes and Prevention of Violence.
INTRODUCTION
Violence is the breakdown of social order. Social order is
maintained, and violence is prevented, by the effective func-
tioning of society's primary legal, political and social institu-
tions, including, among others, the agencies of law enforcement.
More than 150 years ago, Thomas Jefferson observed that
"laws and institutions must go hand in hand with the progress
of the human mind. ... As new discoveries are made, new truths
disclosed, and manners and opinions change with the change
in circumstances, institutions must advance also, and keep pace
with the times."
At no time in America's history is Jefferson's observation
more true than today. Industrialized, technologized and com-
puterized; urbanized, plasticized and depersonalized; pluralistic,
alienated and frustrated, America today must look to its institu-
tions legal, political, social, educational, and religious to
preserve its inheritance by changing to meet its changing
needs.
To maintain social order, the law must be rational, wise, and
reasonably consensual; so, too, must the instiutions of family,
church, school, university, and government which undergird the
law's credibility and support its confidence. As Benjamin Dis-
raeli said, individuals may form communities, but only institu-
tions can make a nation. By his institutions and the rules they
make, man collectively solves his problems and civilizes his world.
This Report considers the extent to which weaknesses in
our institutions and our laws are causing the violence in today's
America, and it suggests some of the ways in which we may
prevent violence by repairing these weaknesses.
The following excerpts indicate some of the major themes
of our Report.
PART ONE THE RULE OF LAW
Chapter 1. The Rule of Law
"Increasingly, our institutions are handled with a profound
impatience over their shortcomings and, perhaps, an inadequate
appreciation of their virtues. Change is valued over order, free-
dom over control. Legitimacy, the entitlement to rule, has to
be earned, almost daily, and earned in the face of ever-increasing
standards of performance.
"From this understanding . . . two important and obvious
lessons can be learned for the maintenance of social order in
America. First, social order in America requires that our social
and political institutions be able to regenerate themselves and
respond more effectively to the discontents of the groups within
our society who are currently pressing their claims upon the
larger public. Second, social order in America requires a mod-
ern system of criminal justice which will effectively control
increasing levels of deviant behavior in a manner consistent
with our ideas of fair and humane treatment."
Chapter 2. Disobedience to Law
"Out of the widening protest, one disturbing theme has re-
peatedly appeared. Increasingly those who protest speak of civil
disobedience or even revolution as necessary instruments of ef-
fecting needed social change, charging that the processes of
lawful change built into the system are inadequate to the task.
"The American response to this disobedience to law to
events which are contrary to our fundamental beliefs about
the mode of social and political change has been ambivalent.
The reason lies in the fact that the American people are going
through a crisis of conscience. The issues in whose name violence
has been committed have deeply disturbed and divided the
American people. The tactics of the demonstrators have en-
countered angry opposition, but many Americans continue to
sympathize with some or all of the goals sought by the dem-
onstrators."
PART TWO INSTITUTIONS OF THE POLITICAL
AND SOCIAL ORDER
Chapter 3. Law and the Grievances of the Poor
"The poor have, if anything, more legal problems than the
rest of society. The recent surge of efforts on their behalf only
emphasizes the terrible needs yet unmet in our civil justice
system. They make only a long-delayed beginning; new ways
and more lawyers are desperately needed. Long-range strate-
gems to reform laws and institutions that work unfairly against
the poor must be simultaneously pursued along with justice in
individual cases. More counsel for the poor is basic, the sine
qua non. Court costs should be abolished. The poor need legal
redress for their legal grievances; to be poor is bad enough;
to be poor and denied justice is intolerable."
Chapter 4. Government and the "Forgotten Man"
"The Forgotten Man is the man in the middle, in the majority,
XX
the ordinary guy for whom exceptions are not made. He is
neither so poor that the government thinks it must try to rescue
him, nor so rich that he can exercise independent power. He is
unorganized, so that he is (and more important, feels he is)
alone in his dealings with government. . . .
"Generalities about government being of, for, and by the peo-
ple do not comfort the Forgotten Man when he sees the same
government that socked him with a severe penalty for late
payment of part of his $2,403.16 income tax, now forgive a
million-dollar defaulter for 10^ on the dollar (and issue a press
release bragging about it), or when he sees his taxes apparently
going to support minorities who rant and riot in protest over
his more privileged way of life.
"As the receptive potential audience for racists, super-patri-
ots, and ultra-vigilantes, the Forgotten Man can bolster or de-
tract from the significance of their violence-supporting activities.
With his massive numbers, the Forgotten Man is the key to
their power."
Chapter 5. American Society and the Radical Black Militant
"The radical black militant who attacks a policeman or bombs
a college building is not simply a common criminal. He is indeed
a criminal, but he is different from the burglar, the robber or
the rapist. He is acting out of a profound alienation from society.
He believes that the existing social and political order in America
is not legitimate and that black people in America are being held
in 'colonial bondage' by 'an organized imperialist force/ Thus
he is able to interpret his act of violence not as a crime but as
a revolutionary (or 'pre-revolutionary') act. As an isolated oc-
currence, this distorted interpretation would not be significant
but the interpretation is sustained by an articulated ideology
that is today competing with traditional American values for
the minds and hearts of the rising generation of black ghetto
residents."
Chapter 6. The Responsiveness of Local Government
"The demands for increased citizen participation in the
government of large American cities are consistent not only
with popular conceptions of democracy, but also with recent
social science findings which strongly suggest that accession
to these demands would reap large dividends to society as a
whole, particularly at the local level. The key findings of current
thinking from political and social sciences are that the percep-
tion of personal effectiveness in politics, or 'political efficacy/ is
related to satisfaction with government and that a strong
sense of political efficacy seems to be necessary to motivate per-
sons to express their demands in conventional, nonviolent modes."
xxi
Chapter 7. The Electoral Process and the Public Will
"The legitimacy of our system of government rests upon the
people's belief that its institutions respond to their needs and
represent their views. If the people lack confidence in the elec-
toral system or if they feel excluded from decision-making
processes and helplessly depend on the discretion of govern-
mental and quasi-governmental officials, the legitimacy of the
system stands almost certainly in serious question, making for
political alienation in America. Can defects in the national
electoral process convention, campaign, and election which
may give rise to disaffection from the political system, be
remedied?"
Chapter 8. Congress and the Public Will
"No feature of Congressional practices has drawn as much
criticism as seniority. The seniority system has undoubtedly
contributed to the unrepresentativeness of legislative leader-
ship, because longevity in office tends to be associated with
homogeneous, one-party districts. In the 90th Congress, for
example, southerners comprised only about one-fifth of the
membership of the Senate and a quarter of the membership
of the House, yet they controlled the chairmanships of ten of
the sixteen Senate standing committees and ten of the twenty-
one House committees. Such men are frequently at loggerheads
with the policies of the national party, a fact which can exacer-
bate conflict between Congress and the Executive branch."
Chapter 9. The Family and Violence
"The American family has clearly lost some of its solidarity.
. . . Once it was the source of cohesion and security, the unit of
economic activity, the means of recreation and education.
Today it is increasingly disrupted. Divorce rates rise, but are
outrun by the incidence of marital conflicts. Parents, especially
working mothers, spend more time outside the home, and tele-
vision changes the character of family recreation. A generation
gap widens, as young people identify more with peer groups
in colleges, dropout communities, and street cultures than with
their own families.
"These changes do not necessarily signify a decline in the im-
portance of the family. They do reflect the increasing pressures
which the family is under but these stresses frequently stem
precisely from the fact that more is being demanded of family
life than ever before. Thus, as urbanization depersonalizes
human relationships, husbands and wives become more depend-
ent upon each other for the satisfaction of emotional needs that
were previously met outside of the family. And, despite the
impact of television, the family manifestly retains its central
role in the upbringing of children."
Chapter 10. The Public School and the Children of Poverty
"When the school is a place where children find that they can
be successful and can experience just treatment, they develop
respect for law and for habits in harmony with the regulations
of their society. But when the school is a place where children
fail or where they experience unjust treatment, they become
frustrated, they reject society's values, and they are more likely
to resort to violence in an effort to solve their problems. In
America we have both kinds of schools, and the children of
poverty are to be found primarily in the second kind."
Chapter 11. The Church and the Urban Crisis
"Religious groups such as churches or parishes are probably
the only institutions by which culturally different groups, or
conflicting or alienated groups, may be brought to some sense
of unity. Repeatedly in the past, the religious group has been
able to bridge the gap between different social classes, different
ethnic groups, different interest groups, by forging a common
bond around common religious beliefs and practices. Thus, in
the celebration of the liturgy, rich and poor, educated and un-
educated, the powerful and the underprivileged, have frequently
been able to celebrate the common beliefs in which they were one,
despite the many differences which divided them."
Chapter 12. The Reform of the University
"Someone once said that no one should meddle with a uni-
versity who does not understand it and love it. The comment was
probably prompted by a realization that the university is a
rather fragile institution, despite the fact that it has endured
for a thousand years and has survived formidable threats to its
integrity and freedom. The university is fragile because it is no
more than people of good will committed to some very lofty
principles : freedom, tolerance, mutual understanding, open
communication, truth, and honesty. These are surely elusive
principles difficult to attain, easy to lose. They are, however,
the only things that distinguish a university from any other
cluster of buildings inhabited by humans with all their vested
interests and venal shortcomings. By its own actions, the uni-
versity has compromised some of these principles. Great social
forces working on the university have also jeopardized them.
Now, in a righteous frenzy to reform the university, its active
critics imperil these principles. Freedom, especially, is in dan-
ger."
Preface to the Portfolio of Lithographs on Crime and Violence
"[T]he combination of reason and law from the time of its
ancient origins has been unable to prevent jealous husbands
from taking to fits of passion which result in the murder of
xxiii
their unfaithful wives. So too it has been unable to prevent Cains
from slaying Abels, parents from maliciously beating their
children. Nor has it been able to deter the emergence of men
like the Marquis De Sade, Jack The Ripper, or the Boston
Strangler. ... In a sense, then, in our applying reason and law
to the subject of crime and violence, we are handicapped. Worse
yet, our efforts are bounded not only by the limits of the tool we
utilize to treat the subject, but by the pervasive, complex and
irrepressible nature of the subject itself. We are not dealing
with a phenomenon which has had its birth in America of the
nineteen-sixties, but with a problem that has existed since man-
kind was born.
"We are here dealing with one small variation on the ageless
theme of good and evil, of right and wrong, of love and hate.
There is a mystery about this topic which transcends reason
and which inescapably penetrates to the very core of the hu-
man soul."
PART THREE THE AGENCIES OF LAW ENFORCEMENT
Chapter 13. The Nonsystem of Criminal Justice
"In the mosaic of discontent which pervades the criminal proc-
ess, public officials and institutions, bound together with private
persons in the cause of reducing crime, each sees his own
special mission being undercut by the cross-purposes, frailties
or malfunctions of others. As they find their places along the
spectrum between the intense concern with victims at one
end, and total preoccupation with reforming convicted law-
breakers at the other, so do they find their daily perceptions
of justice varying or in conflict. The conflicts in turn are inten-
sified by the fact that each part of the criminal process in most
cities is overloaded and undermanned, and most of its personnel
underpaid and inadequately trained.
"Under such circumstance it is hardly -surprising to find in
most cities not a smooth-functioning 'system' of criminal justice
but a fragmented and often hostile amalgamation of criminal
justice agencies. To the extent they are concerned about other
parts of the 'system/ police view courts as the enemy. Judges
often find law enforcement officers themselves violating the
law. Both see correctional programs as largely a failure. Many
defendants perceive all three as paying only lip service to indi-
vidual rights."
Chapter 14. The Police and Their Problems
"A black policeman, asked why he decided to become a
police officer, gave us this answer:
'Man, when I was a little kid I thought cops were God.
I lived in the ghetto and I saw drunks, addicts, cuttings,
shootings, and husbands hitting wives and kids fighting on
street corners and other bad scenes everyday.
'Somebody always called the police. The police arrived
in the middle of the hassle and were always cool and always
got on top of the problem fast. If they could break it up
by quiet mouthing it they would. If they had to bust some-
body they did it quick and were gone. Whatever it was,
they arrived on the scene, got with it fast, stopped the
trouble and split always with a cool head. I figured that
was smooth and so I decided when I was a kid I wanted
to be a policeman and do the same thing/
"Understanding and coolheadedness these qualities represent
the very essence of a 'good cop.' '
Chapter 15. Official Responses to Mass Disorder I:
Current Social Control
"The recent wave of urban disorders found law enforcement
agencies ill-trained, ill-equipped and ill-prepared to deal with
them. The Civil Disorders Commission noted these deficiencies
and proposed measures to upgrade the levels of preparedness
and response of these agencies. Since the Report of that Com-
mission, significant but uneven steps have been taken to imple-
ment these recommendations. Army and National Guard units
now stand trained and ready to deal with domestic upheavals.
This rapid progress has been due largely to effective staff plan-
ning. The response of local law enforcement agencies, however,
has lagged. Two problems adequate numbers of trained man-
power and adequate communications have yet to be solved."
Chapter 16. Official Responses to Mass Disorders II:
The Circuit of Violence A Tale of Two Cities
"The escalation of violence [at the Democratic Convention
in Chicago] was ... a response to unfolding events. Goaded
by a few extremists who antagonized police by jeering them,
the police responded by indiscriminately gassing and clubbing
large numbers of protestors. More and more protestors, angered
at this willful violence by policemen, struck back in the only
ways they, as upper-middle class, college-educated youths, could
by swearing and throwing rocks. And so the escalation con-
tinued. Demonstrators provoked policemen. Policemen provoked
demonstrators. The circuit of violence was closed. This cycle
was never allowed to complete itself [in the Counter-Inaugural
Demonstration] in Washington. Provocation by demonstrators
was met with restraint. Provocation by policemen was termi-
nated by police and city officials who intervened quickly to
restore discipline. As a result, escalation never took place."
XXV
Chapter 17. Securing Police Compliance with Constitutional
Limitations : The Exclusionary Rule and Other Devices
". . . [PJrimary responsibility for everyday police discipline
must rest within the police department. Nevertheless, since
internal review has been uniformly sluggish, some kind of
outside pressure must be brought to bear to induce voluntary
correction of illegal and otherwise abusive police conduct.
. . . The civilian review boards are doomed to futility since they
pit the aggrieved citizen against the police department in a
formal adversary proceeding; in short, someone always wins
and someone is always resentful. The ombudsman, on the other
hand, shifts the focus from dispute resolution to evaluation
of the department's grievance response mechanism. . . . What is
needed is a hybrid of the ombudsman and the external review
agency "
Chapter 18. Citizen Involvement in Law Enforcement
"When discussing the crime problem, people turn to the
police, the government, and the courts and ask 'Why don't they
do more?' Rarely do they ask 'What can I do?' Individual activity
against crime usually reveals itself in sporadic bursts of indig-
nant response to a specific act or a series of acts of crime, to
the sensational, or to the crime that got a little too close to home
this time. Nonetheless, the citizen can do a great deal to help
not only the police and the community, but also himself."
Chapter 19. The Bail Problem : Release or Detention
Before Trial
"Pretrial detention should not be permitted to serve as a
substitute for an adequately staffed and efficient system of jus-
tice. A period should be set aside for genuine experimentation
with effective means, short of detention, for protecting the
community from the dangerous defendant, particularly greatly
reduced pre-trial periods and increased supervision of released
defendants. At the same time efforts should be intensified to
develop techniques for more accurately identifying those few
defendants who are so dangerous to the community that they
may not be released before trial, even for a brief period. . . .
The government should protect citizens from acts of violence,
but the public is not protected when defendants are detained
or released almost at random according to either the amount of
bail they can raise or the unsupported intuitions of the judi-
ciary. The rights of defendants and the safety of the public
deserve a better system."
Chapter 20. The Constitution and Rights of the Accused
"The charge that the Supreme Court's decisions 'cause vio-
lence' is unwarranted, and insofar as it diverts our concern away
xxvi
from the real causes of violence, it is harmful to society. The
charge that the Court's decisions materially hamper the ability
of the agencies of the state to solve crimes and to convict those
who commit them, lacks sufficient empirical data upon which
to base that conclusion. We do not as yet know, for example,
the degree to which confessions are in fact crucial to convic-
tions. Nor have we yet had sufficient experience with the rules
laid down in the Court's decisions in this area to judge whether
they will have any significant impact upon the rate of confes-
sions, given the known propensity of many arrestees to confess
even without interrogation.
"More importantly, even assuming that police may be less
effective in securing convictions because of the Supreme Court
rulings, the debate is not ended. As has been pointed out,
each provision of the Bill of Rights was drafted expressly to
make it more difficult to secure convictions. The more rele-
vant question is whether the price we pay for our freedoms
is too great to endure. Before we condemn a significant element
of our heritage to obsolescence, we should ask whether there
is a baby in the bath worth preserving. For it is clear that
we could be of greater assistance to our police by appropriat-
ing the necessary funds to finance crime laboratories, ade-
quate prosecutorial staffs, and proper correctional treatment.
Few indeed, are the criminals 'turned loose' on society by
Supreme Court decisions, far fewer than those who are never
caught in the first place."
Chapter 21. Court Management and the Administration
of Justice
"When courts are properly managed, the values of efficiency,
economy and effectiveness are joined with the values of equality,
due process, and justice for all. The joining of such values is
what citizens seek from public institutions in a democratic
society. For example, genuine thoughtfulness extended to wit-
nesses and jurors may be a small thing, but it is important
to obtain their cooperation. Public institutions quite often lack
that decent grace which makes a person feel positively about
his government. Sophisticated court management with a feeling
for all people connected with the courts, for professional values,
for constitutional and statutory standards can, in its own way,
be a positive factor in preventing loss of respect for law and
for courts."
Chapter 22. The Administration of Justice Under Emergency
Conditions
"Criminal justice machinery in our cities during and in the
xvii
wake of civil disorders and other emergency situations has
failed to successfully deal with the physical and mechanical
problems of handling the increased flow of arrestees and de-
fendants. The standards of justice in the initial stages of crim-
inal prosecutions, low in normal times, went still lower in
emergencies, especially in the critical matters of bail and pro-
vision of counsel."
Chapter 23. The Problem of "Overcriminalization"
"The criminal law is society's most drastic tool for regulating
conduct. When it is used against conduct that a large segment
of society considers normal, and which is not seriously harmful
to the interests of others, contempt for the law is encouraged.
When it is used against conduct that is involuntary and the
result of illness, the law becomes inhumane. When it becomes
a means for arbitrary or abusive police conduct, it can cause
hostility, tension, and violence."
Chapter 24. Problems of the Corrections System
"Almost the entire emphasis of correctional critics today
is on the inadequacy of the resources committed to prison sys-
tems insofar as they relate to rehabilitation: the prison build-
ings are not suited for rehabilitation, the staffs are not large
enough nor well enough trained to accomplish rehabilitation,
the allocation of funds expended by correctional institutions
is not designed primarily to achieve the objective of rehabili-
tation. All this is true, of course but there is another point as
well. Inherent in most prisons is an environment in which
vicious and brutal degradation of inmates regularly takes
place."
xviii
PART ONE
THE RULE OF LAW
CHAPTER 1
THE RULE OF LAW*
THE EVOLUTION OF SOCIAL ORDER
A society, whether primitive tribe or modern nation, may be
looked upon as a complex of human institutions whose purpose
it is to secure some measure of social order. These institutions
may have other purposes and fill other needs; but the achieve-
ment of order is a fundamental part of their function.
Why is social order so universally sought by groups of men?
A number of answers might be offered. One important answer
is that human welfare demands, at a minimum, sufficient order
to insure that such basic needs as food production, shelter and
child rearing, be satisfied, not in a state of constant chaos and
conflict, but on a peaceful, orderly basis with a reasonable level
of day-to-day security. Ancient Mesopotamia, perhaps the first
society that we can call civilized, arose from disciplined coopera-
tion among men in the task of irrigating the Tigris-Euphrates
river valley. 1 Today, the infinitely complex social order of the
United States and the agricultural abundance it has produced
make it possible for us to ask impatiently, for the first time in
man's history, why it is that anyone in this country of 200 million
people should go hungry.
How is social order attained? It does not come naturally and
without effort. Since man first moved into communities and at-
tempted to cope with the exigencies of life through joint and
collective effort, he has been faced with the fact that not all mem-
bers can be relied on to follow the rules of the community. Even
in the simplest, most homogeneous societies, problems of deviant
actors within the community have appeared time and time again.
Accordingly, social-control techniques have been developed by
all societies, simple as well as complex, to deal with the problem
* This chapter was written by James S. Campbell based in part on the
research contribution of Warwick R. Furr, Esq., Kirkland, Ellis, Hodson,
Chaffetz & Masters, Washington, D.C. ,
4 Report of the Task Force on Law and Law Enforcement
of disruptions of the community order and degradations of com-
munity values.
Social control techniques vary from society to society, depend-
ing upon the range of needs and stage of development of each
society. In primitive societies, social order may result in large
measure from a homogeneity of basic values, reinforced by strong
kinship systems, tribal rites, taboos, and commonly accepted
religious beliefs. A highly formalized legal structure thus may
not be necessary or even possible.
In the nomadic Eskimo culture, for example, the demands of
survival in a harsh environment may effectively foreclose the
development of detailed, structured political systems with in-
stitutionalized legal machinery. The basic unit of government is
the family, because the basic unit of economic activity is the
family ; and magic and religion, rather than formal legal institu-
tions, regulate most behavior. 2 Similarly, other primitive so-
cieties, such as the Trobriander Islanders, achieve social order
primarily through the dominant role of clan-kinship systems,
reinforced by custom and by generally held religious beliefs. Al-
though in such cases there would appear to exist the leisure time
necessary to develop more formalized governmental structures
with concomitant law-making and law-enforcing institutions, ap-
parently such structures do not develop because the homogeneity
of values allows the existing system to work fairly well with a
minimum of friction and disorder. 3 Where deviant behavior
occurs in primitive societies, simple techniques, such as ostracism
of the offender from the tribe, may be adequate to maintain
order. 4
Even in societies which have evolved far beyond the primitive
stage, the institutions of family and religion may predominate
over strictly legal institutions in the process of attaining social
order. In pre-Communist China, for example, the family clan
retained a central role in social ordering because of its utility in
stabilizing the neighborhood and in facilitating the work of local
administrators. 5 In the international society of medieval Chris-
tendom, it was the Church that primarily determined the
form of the social order. 6
As societies grow more complex, however, methods of obtain-
ing social order, settling disputes and reinforcing key social
norms tend to become more complex, highly structured, and im-
personal. Highly formalized legal institutions tend to supplant
traditional institutions as the primary means of maintaining
order. 7 There are many reasons for this change.
For one thing, consensus, the shared belief in basic norms,
becomes more difficult to achieve as a society becomes more
diverse. The loss of dialogue between citizens holding different
jobs and living in different neighborhoods is a product of social
The Rule of Law 5
evolution which leads to a decline of community consensus. Addi-
tionally, the modern phenomenon of extreme geographic mobility
coupled with urbanization, reduces the effectiveness of commu-
nity consensus as an element of social order. The opprobrium of
community disapproval to unacceptable and disruptive conduct,
found in the small town, is no longer a realistic means of social
control in the anonymity of the urban center, where people
come and go with a minimum of long-term neighbrohood con-
tacts.
Many other desirable, or at least necessary, features of modern
life operate to weaken (though by no means wholly to eliminate)
the social-control function of traditional institutions. Thus, the
existence of public schools and compulsory attendance laws,
juvenile courts, the draft, and the impact of mass media, all
contribute to and reflect a lessening of family discipline as an
ordering influence. The notion of a "wall of separation" between
Church and State represents for many a cherished political belief,
but at the same time, it must be recognized, something of an
implicit discounting of organized religion's importance in insur-
ing stability of the social order.
The discussion could be prolonged but the basic point is clear
enough: when a society becomes highly complex, mobile, and
pluralistic; the beneficiary, yet also the victim, of extremely
rapid technological change; and when at the same time, and
partly as a result of these factors, the influence of traditional
stabilizing institutions such as family, church, and community
wanes, that society of necessity becomes increasingly dependent
on highly structured, formalistic systems of law and government
to maintain social order.
In large measure, this is a picture of contemporary American
society. We have moved, through a process of social evolution,
to a stage where our formal legal institutions and procedures
necessarily occupy a preeminent position in the preservation of
social order. We have traveled too far, we are too diverse, too
complex to rely as heavily as we have on traditional institutions
to perform the functions of social control. For better or worse,
we are by necessity increasingly committed to our formal legal
institutions as the paramount agency of social control.
THE NATURE OF THE RULE OF LAW
Most of us are generally familiar with the operation of the
major elements of the criminal justice process police, courts,
and corrections and we are well aware of the roles played by
at least the more visible legal institutions of Federal and State
government President and Congress, Governor and legislature.
Less often, however, do we reflect upon a more fundamental kind
6 Report of the Task Force on Law and Law Enforcement
of question : what is it about these institutions that enables them
to perform the function of maintaining social order? What makes
them able "to insure domestic tranquility" and, conversely, what
makes them fail? This is a difficult, complicated question, but the
violence and disorder in America today require us to reflect
upon it.
One answer is that the institutions of law and government
r^amtain order and control deviant behavior primarily through
force, through the forcible apprehension and incarceration of
offenders, and the deterrent effect on others produced by the
omnipresent threat of such action. It has been said :
The really fundamental sine qua non of law in any society
primitive or civilized is the legitimate use of coercion by
a socially authorized agent. 8
It seems clear enough that the institutions of social control
function in part in this way. Yet lately it has been fashionable
to minimize the unpleasant truth that a society must often in-
deed, routinely resort to force to maintain the orderly processs
upon which the welfare of all its members depends. The need of
a society for a police force and an army says something about
human nature that many do not want to hear.
Even among social scientists, there has been much skepticism
about the proposition that "negative sanctions" significantly af-
fect conformity or deviance from society's norms, and some
sociologists and psychologists have gone so far as to take the
position that legal punishment for criminal behavior is at best
irrelevant and at worst a barbaric anachronism. 9 This tendency
has been attributed in part to the current disrepute of the "clas-
sical" school of criminology, which viewed human beings as se-
lecting certain courses of conduct on the basis of a rational cal-
culation of the pleasure or pain likely to result from the conduct
and in part to uncautious generalization from the research
findings that capital punishment does not act as an effective de-
terrent to murder. 10 Also, it^ jsj/vejL known. Jbhat imprisonment
often fails to prevent furtri^r^criminal behavior, but this fact
does not provide any evidence one way or the other on the ques-
tion of whether the likelihood of punishment serves as a deter-
rent to potential offenders who have not yet been punished or
caught in a criminal act. 11
Recent studies indicate that the deterrent effect of swift, cer-
tain application of sanctions may be underestimated. An inten-
sive study of parking violators at a midwestern university, before
and after more stringent regulations and enforcement policies
were imposed, found a significant reduction in violations after
the severity and certainty of the penalties were increased. 12 In
a recent research project, indexes of the certainty and severity
The Rule of Law 7
of punishment for homicide in the United States were calculated,
and strong evidence was found to suggest that higher probabil-
ities of certain apprehension and long imprisonment are asso-
ciated with lower homicide rates. 13 Another study related cer-
tainty and severity of punishment for crime to crime rates for
the different states. A strong and consistent relationship was
observed between greater certainty of punishment and lower of-
fense rates in almost all cases (but no similar association for
severity, except in the case of homicide), and the author con-
cluded that "sociologists must take the idea of deterrence se-
riously." 14
Deterrence has generally been taken seriously by political sci-
entists and lawyers. James Q. Wilson, for example, has recently
noted that in our humanitarian concern for the rehabilitation
function of our criminal justice system, we have instituted re-
forms that may have reduced the system's deterrence of criminal
behavior without offsetting gains in rehabilitation. 15 In testimony
before the Violence Commission, James Vorenberg, the former
Executive Director of the President's Commission on Law En-
forcement and the Administration of Justice, stated:
I do think we know, from the relatively few studies that
have been made, that increasing the number of police does
reduce crime without increasing the arrest rate . . . simply
by serving as a deterrent. I think there are some other
points in the [criminal justice] system where increased re-
sources might have a deterrent effect . . . [such as] making
the court system more efficient. . . , 16
But if sociologists have frequently underestimated the utility
of deterrence as a means of social control, lawyers and others
have often overestimated it. And this brings us to a second major
answer that must be given to the question of how legal institu-
tions maintain social order.
Public order in a free society does not and cannot rest solely
on applications or threats of force by the authorities. It must
also rest on the people's sense of the legitimacy of the rule-mak-
ing institutions of the political and social order and of the rules
these institutions make. Persons obey the rules of society when
the groups with which they identify approve those who abide by
the rules and disapprove those who violate them. Such expres-
sions of approval and disapproval are forthcoming only if the
group believes that the rule-making institutions are in fact en-
titled to rule-that is, are "legitimate."
The income tax laws, for example, make this point clear. In a
way, these laws represent consensual taxation. True, some poten-
tial violators are deterred by the strong probability of detection
and punishment, but detection and punishment remain possible
8 Report of the Task Force on Law and Law Enforcement
only because the great majority voluntarily obey the law. Unless
the great majority of citizens voluntarily maintained accurate
records and filed accurate returns, the tax structure would col-
lapse. No amount of investigation or force could insure the suc-
cess of our tax laws as presently written. Regardless of the
popular folklore, however, most Americans are apparently more
honest in reporting their incomes voluntarily than the citizens of
many other nations with far less violent crime than we have. 17
They do so because they recognize, albeit grudgingly, the legit-
imacy of the rule-making institution itself. But if this kind of
episode occurs too frequently or persists for too long without
change as in the case of prohibition or the decision to wage
war in Vietnam the institution itself will soon begin to suffer
a loss of legitimacy.
This concept of acceptance of rules based upon legitimacy may
be termed the "rule of law." The phrase is useful to describe the
willingness of a people to accept and order their behavior ac-
cording to the rules and procedures which are prescribed by
political and social institutions such as legislatures and uni-
versities and enforced, where necessary, either by those bodies
or by other institutions such as governors, police, and courts.
The "rule of law" expresses the idea that people recognize the
legitimacy of the law as a means of ordering and controlling the
behavior of all people in a society, the governors and the gov-
erned, the rich and the poor, the contented and the discontented.
THE RULE OF LAW IN AMERICA TODAY
Abstractions like the "rule of law," or its popular accompani-
ment "respect for law," though useful, also have a way of ob-
scuring hard facts. We have already referred to the fact that
law operates in part by force, and this is an aspect of social
order that sometimes gets overlooked in discussions about the
rule of law. We must also not let such phrases keep us from
recognizing the increasingly radical nature of the legitimacy of
American institutions.
In our society, for well or for ill, legitimacy is becoming more
and more fully equated with utility. 18 Despite the common man's
reservoir of trust and deference toward his own elected govern-
ment which has been a feature of our democracy, 19 there has al-
ways been in our history a competing attitude now becoming
stronger than ever before of insistence on results as a precon-
c4 f ion to consent by the governed. This attitude has been power-
fully reinforced by the philosophy and accomplishments of the
modern welfare state, and has been further nurtured among the
young by contemporary higher education's skeptical probings of
political and governmental power. For many Americans there
The Rule of Law 9
is now no right to govern independent of what government does
for their benefit or for the benefit of the groups in society with
which they identify. In this view, institutions are accorded the
right to make rules only to the extent that those rules clearly
contribute in a positive way to the achievement of accepted goals.
In this matter of the legitimacy of institutions, there is good
reason to think that Americans may be too practical, too skep-
tical, that we take at once too narrow and too demanding a view
of the utility of our legislatures and universities, our President
and our police. This is particularly true of young Americans,
who often unrealistically demand that institutions achieve now
(or at least before the term ends) full implementation of the
society's professed values. If the institution fails to do what is
right, quickly and honestly, its legitimacy is gone and action
must be taken, almost regardless of what is reasonably possible
for the institution to accomplish, and of what are the conse-
quences of the action for the stability and welfare of the in-
stitution.
Some who are older or who have read more history are less
demanding and more concerned to preserve even imperfect in-
stitutions. Writing shortly after the Second World War, Christo-
pher Dawson spoke for this point of view :
[0] ur generation has been forced to realize how fragile and
unsubstantial are the barriers that separate civilization from
the forces of destruction. We have learnt that barbarism is
not a picturesque myth or a half-forgotten memory of a
long-passed stage of history, but an ugly underlying reality
which may erupt with shattering force whenever the moral
authority of civilization loses its control. 20
For all its persuasiveness, however, this conservative point of
view cannot be expected even to hold its own in America today.
Increasingly, our institutions are handled with a profound im-
patience over their shortcomings and, perhaps, an inadequate
appreciation of their virtues. Change is valued over order, free-
dom over control. Legitimacy, the entitlement to rule, has to be
earned, almost daily, and earned in the face of ever-increasing
standards of performance.
The tone of today's and tomorrow's America is to be heard, not
in the concern for social order as a value in iself , but in remarks
of the kind recently made by the Mayor of New York City :
If you wonder why so many students seem to take the
radicals seriously, why they seem to listen to clearly unac-
ceptable proposals and tactics, ask yourself what other source
in the past has won for itself the confidence of young people.
Is it the government, telling us that victory in Vietnam
10 Report of the Task Force on Law and Law Enforcement
was around the corner, or that we fight for a democratic ally
that shuts down newspapers and jails the opposition?
Is it the military, explaining at Ben Tre that "it became
necessary to destroy the town in order to save it"?
Is it the moralizer, warning of the illegality of marijuana
smoking as he remembers fondly the good old days of illegal
speakeasies and illegal bathtub gin?
Is it the television commercial, promising an afternoon of
erotic bliss in Eden if you only smoke a cigarette which is a
known killer?
Is it the university, which calls itself a special institution,
divorced from worldly pursuits, while it engages in real
estate speculation and helps plan and evaluate projects for
the military in Vietnam?
Where is the voice that in fact deserves the allegiance of
concerned youth? The voice that can in fact draw lines to
stop violent or disruptive protest and enforce those lines
with the full support of these young men and women? 21
Of course, the voice that draws the line between the acceptable
and the unacceptable is nothing else but the law and this is the
almost impossibly realistic notion of "law," that we as a nation
bring to the challenges of an increasingly pluralistic, rapidly
changing society. This is the "law" in the "rule of law" and the
"respect for law" which we all devoutly wish to promote.
From this understanding of the rule of law, two important and
obvious lessons can be learned for the maintenance of social order
in America.
First, social order in American requires that our social and
political institutions be able to regenerate themselves and respond
more effectively to the discontents of the groups within our so-
ciety who are currently pressing their claims upon the larger
public.
Second, social order in America requires a modern system of
criminal justice which will effectively control increasing levels
of deviant behavior in a manner consistent with our ideas of fair
and humane treatment.
The rest of this report is an examination of these two basic
requirements.
REFERENCES
1. William H. McNeill, A World History (New York: Oxford University
Press, 1967), at 11.
2. Edward A. Hoebel, The Law of Primitive Man (Cambridge: Harvard
Press, 1954), at 67-99.
3. Bronislaw Malinowski, Crime and Custom in Savage Society (New
York: Harcourt, Brace & Co., 1926), at 63-68.
The Rule of Law 11
4. Karl N. Llewellyn and Edward A. Hoebel, The Cheyenne Way (Nor-
man: University of Oklahoma Press, 1941), at 12-13.
5. Inger Hellstromm, "The Chinese Family in the Communist Revolution,"
6 Acta Sociologica 256-262 (1962).
6. Christopher H. Dawson, Religion and the Rise of Western Culture
(London: Sheed & Ward, 1950) ; Roscoe Pound, Social Control Through
Law (Hamden, Conn.: Archon Books, 1968), at 18.
7. Selznick, "Legal Institutions and Social Controls," 17 Van L. Rev. 79
(1963).
8. Hoebel, supra note 2, at 26.
9. See references in Tittle, "Crime Rates and Legal Sanctions" to appear
in Spring 1969 issue of Social Problems.
10. Chambliss, "The Deterrent Influence of Punishment," 12 Crime &
Delinquency 70 (1966).
11. Tittle, supra note 9.
12. Chambliss, supra note 10.
13. Jack P. Gibbs, "Crime, Punishment and Deterrence," 48 Southwestern
Social Science Quarterly 515 (1968).
14. Tittle, supt-a note 9.
15. James Q. Wilson, "Crime and Law Enforcement," in Agenda For the
Nation, ed. by Kermit Gordon (Washington, D.C.: Brookings Institu-
tion, 1968), at 184-85.
16. Testimony of James Vorenberg before the National Commission on the
Causes and Prevention of Violence, Sept. 25, 1968, tr. 452.
17. E.g., Italy, France, Switzerland. New York Times, April 15, 1969,
at 4.
18. Testimony of James Q. Wilson before the National Commission on the
Causes and Prevention of Violence, Sept. 18, 1969, tr. 185 et seq.
19. Robert E. Lane, Political Ideology: Why the American Common Man
Believes What He Docs (New York: The Free Press of Glencoe, 1962).
20. Dawson, supra note 6, at 18.
21. Address by John V. Lindsay before the Yale Law School Association in
New Haven, Connecticut, April 26, 1969.
CHAPTER 2
DISOBEDIENCE TO LAW*
Over the past two decades increasing numbers of people seem
to have embraced the idea that active disobedience to valid law
perhaps even violent disobedience is justified for the purpose
of achieving a desirable political goal. This idea found wide-
spread support in the South as the white majority in that region
resisted enforcement of the constitutionally denned rights of
Negroes, and some such notion was probably not far from the
minds of the Alabama State Troopers when they attacked Dr.
King's peaceful demonstration at Selma in 1965. No doubt it was
also prominent in the thinking of the Chicago policemen who
administered punishment to the demonstrators in Chicago during
the Democratic Convention of 1968.
The same idea that disobedience to law is justified in good
cause which can be furthered in no other way is also widely
held by many students, black citizens and other groups pressing
for social change in America today. It is the illegal and some-
times violent activities of these groups that have been most per-
plexing and disturbing to the great majority of Americans. Their
actions have prompted the most intense interest in the ancient
philosophical question of man's duty of obedience to the state.
Business lunches and suburban cocktail parties have come to
sound like freshman seminars in philosophy, as an older genera-
tion has argued back and forth over the rightness and the wrong-
ness of "what the kids and the Negroes are doing."
When deliberate, active disobedience to duly enacted, constitu-
tionally valid law is widely engaged in as a political tactic, and
when "civil disobedience" is a topic hotly debated on every side,
it is impossible for a Task Force on Law and Law Enforcement
to file a report that does not discuss this age-old subject, however
briefly.
* This chapter was prepared by the Directors of the Task Force, based
in part on contributions by Francis A. Allen, Dean of the Law School, Uni-
versity of Michigan, Charles Monson, Associate Academic Vice President,
University of Utah, and Fugene V. Rostow, Professor of Law, Yale Univer-
sity.
13
14 Report of the Task Force on Law and Law Enforcement
THE AMERICAN IDEAL
In a democratic society, dissent is the catalyst of progress. The
ultimate viability of the system depends upon its ability to ac-
commodate dissent ; to provide an orderly process by which dis-
agreements can be adjudicated, wrongs righted, and the structure
of the system modified in the face of changing conditions. No
society meets all these needs perfectly. Moreover, political and
social organizations are, by their nature, resistant to change.
This is as it should be, because stability order is a funda-
mental aim of social organization. Yet stability must not become
atrophy, and the problem is to strike the proper balance between
amenability to change and social stability.
Every society represents a style of living. The style is repre-
sented by the way in which people relate to the social structure,
the way in which social decisions are made, the procedures which
govern the ways people in the society relate to each other. In a
democratic society such as ours, the governing ideals are govern-
ment by the rule of law, equality before the law, and ultimate
control of the law-making process by the people. We depend upon
these principles both to accommodate and to limit change, and to
insure the style of living we prefer.
As Tocqueville observed, America is peculiarly a society of
law. The law has played a greater part among us than is the case
in any other social system in our restless and jealous insistence
on the utmost range of freedom for the individual ; in our zeal to
confine the authority of the state within constitutional dikes ; and
in our use of law as a major instrument of social change. The
practice of judicial review in the United States has had an extra-
ordinary development, with no real parallels elsewhere. It has
kept the law a powerful and persistent influence in every aspect
of our public life.
We believe with Jefferson that the just powers of government
are derived and can only be derived from the consent of the
governed. We are an independent, stiff-necked people, suspicious
of power, and hardly docile before authority. We never hesitate
to challenge the justness and the constitutional propriety of the
powers our governments and other social institutions assert. In
the robust and sinewy debates of our democracy, law is never
taken for granted simply because it has been properly enacted.
Our public life is organized under the explicit social compact
of the Constitution, ratified directly by the people, not the States,
and designed to be enforced by the Courts and by the political
process as an instrument to establish and at the same time to
limit the powers of government. As Justice Brandeis once ob-
served, " [t] he doctrine of the separation of powers was adopted
by the Convention of 1787, not to promote efficiency but to pre-
clude the exercise of arbitrary power. The purpose was, not to
uisobedience to Law 15
avoid friction, but, by means of the inevitable friction incident
to the distribution of the governmental powers among three de-
partments, to save the people from autocracy. . . . And protection
of the individual . . . from the arbitrary or capricious exercise of
power . . . was believed to be an essential of free government."
The social contract of our Constitution goes beyond the idea
of the separation of powers, and of enforceable limits on the
competence of government. The governments established by the
national and state constitutions of the United States are not omni-
potent. A basic feature of the Constitution, made explicit in the
Ninth and Tenth Amendments, is that rights not delegated to
governments are reserved to the people. The Amendments may
not be directly enforceable in the Courts, but the idea they repre-
sent animates many judicial decisions, and influences the course
of legislation and other public action.
In a multitude of ways, the Constitution assures the individual
a wide zone of privacy and of freedom. It protects him when ac-
cused of crime. It asserts his political rights his right to speak,
to vote, and to assemble peaceably with his fellows to petition the
Government for a redress of his grievances. Freedom of speech
and of the press are guaranteed. Religious liberty is proclaimed,
and an official establishment of religion proscribed. And the
Constitution seeks assurance that society will remain open and
diverse, hospitable to freedom, and organized around many cen-
ters of power and influence, by making the rules of federalism
and of liberty enforceable in the Courts.
The unwritten constitution of our habits is dominated by the
same concern for preserving individual freedom against en-
croachment by the State or by social groups. The anti-trust laws ;
the rights of labor; the growing modern use of state power to
assure the equality of the Negro; the wide dispersal of power,
authority, and opportunity in the hands of autonomous institu-
tions of business, labor, and education all bespeak a characteris-
tic insistence that our social arrangements protect liberty, and
rest on the legitimacy of consent, either through the Constitution
itself, made by the people, and capable of change only by their
will, or through legislation and other established methods of
social action.
In broad outline, such is the pluralist social compact which
has evolved out of our shared experience as a people. It has its
roots in our history. And it grows and changes, in accordance
with its own rules and aspirations, as every generation reassesses
its meaning and its ideals.
OUR CONTEMPORARY DISCONTENTS
Today there are many who maintain that these ideals, and the
institutions established to maintain them, no longer operate prop-
16 Report of the Task Force on Law and Law Enforcement
erly. In recent years, increasing numbers of Americans have
taken to the streets to express their views on basic issues. Some
come to exercise their right to dissent by parades and picketing.
Some dramatize their causes by violating laws they feel to be
wrong. Some use the issues being protested as drums to beat in
a larger parade. For example, the Vietnam war has been used
on one side as a dramatic moment in the ubiquitous, always evil
Communist conspiracy ; on the other as an exemplar of the funda-
mental diabolism of western capitalist nations. Some take to the
streets in the belief that the public, if made aware of their griev-
ances, will institute the necessary processes to correct them.
Others come in anger ; not hopeful, but insistent ; serving notice,
not seeking audience. Finally, there are even a few who take to
the streets to tear at the fabric of society ; to confront, to commit
acts of violence, to create conditions under which the present
system can be swept away.
Out of the widening protest, one disturbing theme has repeat-
edly appeared. Increasingly those who protest speak of civil
disobedience or even revolution as necessary instruments of ef-
fecting needed social change, charging that the processes of law-
ful change built into the system are inadequate to the task.
The American response to this disobedience to law to events
which are contrary to our fundamental beliefs about the mode
of social and political change-has been ambivalent. The reason
lies in the fact that the American people are going through a
crisis of conscience. The issues in whose name violence has been
committed have deeply disturbed and divided the American peo-
ple. The tactics of the demonstrators have encountered angry
opposition, but many Americans continue to sympathize with
some or all of the goals sought by the demonstrators. After all,
although one might argue that the Negro has advanced in the last
ten years, few would maintain he has attained full first-class
citizenship. And who would say the ghettos are not an agonizing
disgrace? Similarly, Vietnam is hardly an open-and-shut case.
The only point of view from which it is clearly praiseworthy is
the self-interest of ourselves and our allies. The draft, another
key issue, is at best a regrettable and clumsily administered sys-
tem. Finally, when the young charge that our system-political
and social is shot through with hypocrisy, only the most fanatic
feels no twinge.
We must, of course, realize that civil rights demonstrations
arise from great suffering, disappointment and yearning. We
must recognize the importance to the democratic process, and to
the ultimate well-being of our nation, of young people combatting
hypocrisy and indifference. But when these emotions become a
basis for action and when that action creates social disorder,
even the most sympathetic are forced to judge whether and to
Disobedience to Law 17
what extent the ends sought justify the means that are being
used.
The difficult problem in this endeavor is to maintain perspec-
tive. The issues have reached a stage of polarization. Partisans
on each side constantly escalate the rhetorical savagery of their
positions, adding nothing but volume and abuse. There is a great
temptation to take sides without thoughtful inquiry if for no
other reason than because it is simpler. What are some of the
considerations which should guide us in this inquiry?
MORAL JUSTIFICATIONS FOR DISOBEDIENCE TO LAW:
THE NEEDS OF THE INDIVIDUAL
The idea that men have the right to violate the law under cer-
tain circumstances is not new. The oldest justification for such
action seems to have been through appeal to a higher "natural
law" which is the only proper basis of human law. This theory,
which dates at least as far back as Plato, and which is in our own
Declaration of Independence, 1 has recently found expression in
the thought of Martin Luther King :
A just law is a man-made law of God. An unjust law is a
code that is out of harmony with the moral law. To put it
in the terms of Saint Thomas Acquinas, an unjust law is a
human law that is not rooted in eternal and natural law. 2
For St. Thomas political authority was derived from God and
hence binding in conscience, but where authority was defective
in title or exercise, there was no obligation of conscience. 3 Such
a condition arose in the case of a ruler who had either usurped
power or who, though legitimate, was abusing his authority by
ruling unjustly. Indeed, when the ruler contravened the very
purpose of his authority by ordering a sinful action, the subject
was under an obligation not to obey. In the case of abuse of
authority, St. Thomas apparently endorsed nothing more than
passive resistance by the citizen; but where the ruler illegiti-
mately possessed himself of power through violence, and there
was no other recourse for the citizen, then St. Thomas allowed
active resistance and even tyrannicide.
Later Catholic thinkers, such as the Jesuit Francis Suarez
denied the divine right of kings, holding that the ruler derives
his authority immediately from the people and only ultimately
from God. These doctrines led logically to the conclusion that
in any circumstances in which a ruler turns into a tyrant,
whether originally a legitimate ruler or not, he may be deposed
by the people, by force if necessary. This conclusion became, of
course, the generally accepted view in the secular world, with
the theories of Locke and Jefferson and the American and French
18 Report of the Task Force on Law and Law Enforcement
Revolutions in the eighteenth century and the rise of liberal
democracy in the nineteenth.
The notion of a "social compact" was always closely bound up
with the emerging ideas of popular sovereignty. 4 This theory,
especially prominent in John Locke, expresses the view that gov-
ernments evolve by the consent of the governed and that the con-
stitution establishing a government is a contract or agreement
which, once it is established, is binding upon all men, both those
opposed to it and those who favor it. When government's laws
are consistent with terms of the covenant, then the people must
obey them. But the people "are absolved from obedience when
illegal attempts are made upon their liberties or properties, and
may oppose the unlawful violence of those who were their mag-
istrates when they invade their properties contrary to the trust
put in them. . . ." 5
Most of the unlawful opposition today to the Vietnam war is
justified on the ground that the war is itself immoral and "un-
lawful" in various respects. Since it is immoral, the argument
goes, there is no moral duty to obey those laws which are in the
aid of the conduct of the war. Indeed, the argument continues,
one's true moral duty is to resist the war and to take affirmative
action to impede its prosecution. On theories of this kind, Amer-
icans have refused to be drafted ; they have disrupted selective
service facilities and destroyed selective service records; they
have vilified the President, the Secretary of State and the Sec-
retary of Defense and attempted to disrupt their public speeches ;
they have attempted to bar companies and governmental agen-
cies participating in the war effort from university campuses
and to disrupt the universities that refused to accede to that
demand.
At the level of individual morality, the problem of disobedience
to law is wholly intractable. One is tempted to suggest that even
if the war is immoral, the general level of morality of the coun-
try is not much improved by the conduct described above. More-
over, if we allow individual conscience to guide obedience to the
law, we must take all consciences. The law cannot distinguish
between the consciences of saints and sinners. As Burke Mar-
shall has said :
If the decision to break the law really turned on individual
conscience, it is hard to see in law how Dr. King is better off
than Governor Ross Barnett of Mississippi, who also be-
lieved deeply in his cause and was willing to go to jail. 6
Where issues are framed in purely moral terms, they are
usually incapable of resolution by substantially unanimous agree-
ment. Moral decisions are reached by "individual prudential ap-
plication of principle, with the principles so general as to be only
Disobedience to Law 19
of minimal assistance and with almost the whole field thus left
to prudence/" 7 This fact is illustrated by the story of the ex-
change that occurred between Emerson and Thoreau, the latter
of whom had in 1845 personally seceded from the United States
in protest against slavery. As part of his anti-slavery campaign,
Thoreau was spending a night in jail. Emerson paid him a visit,
greeting him by saying, "What are you doing in there, Henry?"
Thoreau looked at him through the bars and replied, "What are
you doing out there, Ralph?" 8
But the issue raised by conscientious disobedience to law also
has some more tractable social dimensions. What is the effect
upon our society of this kind of conduct? For instance, how does
it affect the people who engage in the disobedience? Does it have
an effect upon other people? What does it do to our system of
laws?
THE PROBLEM OF CONTAGION : THE NEEDS OF SOCIETY
Although there are some who argue that tolerating any form
of law r violation serves as an encouragement of other forms of
anti-social or criminal behavior by the violators, some research
in this area suggests precisely the opposite. A series of studies
of approximately 300 young black people who engaged in a
series of acts of civil disobedience were undertaken in a western
city. On the basis of their observations, the authors concluded:
"[T]here have been virtually no manifestations of delinquency
or anti-social behavior, no school drop-outs, and no known illegit-
imate pregnancies. This is a remarkable record for any group
of teen-age children of any color in any community in 1964." 9
In any event the evidence is insufficient to demonstrate that
acts of civil disobedience of the more limited kind inevitably lead
to an increased disrespect for law or propensity toward crime.
In fact, some experts have argued that engaging in disciplined
civil disobedience allows people to channel resentment into con-
structive paths, thereby reducing the propensity for engaging in
antisocial behavior.
But the fact that disobedience to law does not appear adversely
to affect the attitudes of the people who engage in it is only one
small part of the problem. For such conduct does have a serious
adverse effect both upon other people in the society, and, most
importantly of all, upon the system of laws upon which society
must inevitably depend.
The effect of civil disobedience upon others in the community
is clear. Except in the case of those acts designed solely to appeal
to the conscience of the community, the purpose of much con-
temporary disobedience to law is to influence community action
by harassing or intimidating the members of the community into
20 Report of the Task Force on Law and Law Enforcement
making concessions to a particular point of view. In the case
of the opposition to the Vietnam war, for example, those engaged
in acts of disobedience are largely bent upon making miserable
the lives of public officials who support the war, upon bringing
economic pressure to bear on commercial enterprises participat-
ing in the war effort, and upon generally inconveniencing the
public to dramatize a disaffection for war and convince others
that the war is not worth the trouble it is causing. To the extent
that these efforts succeed, others are obviously adversely af-
fected* But the most serious effect of all is suggested in the
following question :
[W]hat lesson is being taught to the wider community by
the precept and example of civil disobedience? Is it tutelage
in nonviolence or in defiance of authority, in rational con-
frontation of social ills or in undisciplined activism? 10
There is every reason to believe that the lesson taught by much
of the current disobedience to law is disastrous from the stand-
point of the maintenance of a democratic society.
The experience of India in this regard is instructive because
that country has had such a long and widespread familiarity with
the practice of civil disobedience:
The fact is that the effect of protest behavior on the func-
tioning of the political system has been palpable. We have
already seen that Indians compel official attention and con-
strain decision-making by deliberately engaging in activities
that threaten public order. Violence or the threat of violence
has become an important instrument in Indian politics.
Public protests involving a threat to public order and non-
violent civil disobedience have become habitual responses to
alleged failures by government to do what a group of peo-
ple want. While it is true that political accommodation is
real in India, it is achieved at a higher level of political
disorder than in any other of the world's democracies. 11
The experience of India seems to indicate that civil disobed-
ience has a strong tendency to become a pattern of conduct which
soon replaces normal legal processes as the usual way in which
society functions. Put in American terms, this would mean,
once the pattern is established, that the accepted method of get-
ting a new traffic light might be to disrupt traffic by blocking
intersections, that complaints against businessmen might result
in massive sit-ins, that improper garbage service might result
*Even in the narrowly defined situation of acts designed solely to appeal
to the conscience of the community, adverse effects frequently flow to
others. Thus a refusal to accept induction into the armed services means
that someone else must serve.
Disobedience to Law 21
in a campaign of simply dumping garbage into the street,
and so on. Of course, these kinds of actions are not unknown in
America today, but in India they have become a necessary part
of the political system. Without a massive demonstration to
support it, a grievance simply is not taken seriously because
everyone knows that if the grievance were serious, there would
be a demonstration to support it.
The adverse effect upon normal democratic processes is ob-
vious. Though not intended to destroy democratic processes, civil
disobedience tends plainly to impair their operation. This is a
fact to which those who engage in civil disobedience should give
consideration lest, in seeking to improve society, they may well
seriously injure it.
This observation, however, will not answer the arguments of
those w r ho believe that the urgency of their message is so strong
that illegal tactics are weapons that must be used whatever the
risks that such use may entail. But even urgent messages too
frequently repeated lose their appeal. Where once people at least
listened patiently, now only deaf ears are turned. Moreover, as
Martin Luther King recognized, violence against an oppressor
only tends in the long run to justify the oppression. Repeatedly
putting one's body "on the line" does not enhance, but diminishes,
the worth of that body to the dominant society. Those militants
who now advocate revolution as the only alternative have recog-
nized this truth.
The belief that a violent revolution is necessary to achieve
social justice depends on the assumption that certain injustices
are intrinsic to our system and therefore not amenable to change
within the system. For revolution is justified only as a last re-
sort, when justice is achievable by no other means.
We agree with the overwhelming majority of the people in
this country that our problems, serious as they are, are not of the
kind that make revolution even thinkable, let alone justifiable.
We believe that /political and social mechanisms do exist and have
produced significant change in recent years. The remedy for the
discontented, we believe, is to seek change through lawful me-
chanisms, changes of the kind that other chapters of this report
suggest.
But our beliefs and our words are really beside the point. What
is important is rather the beliefs of those diverse, alienated
groups in our society for whom the political and social mechan-
isms do not seem to work. We can only hope that the majority
will respond convincingly to the needs of the discontented, and
that the discontented will remain open to the possibility of achiev-
ing this response through peaceful means.
22 Report of the Task Force on Law and Law Enforcement
CONCLUSION
Official lawlessness by some southern governors, by some
policemen, by corrupt individuals in positions of public trust
is widely recognized as intolerable in a society of law, even if this
recognition is too infrequently translated into effective action
to do something about the problem. We believe that the time has
also come for those participating today in the various protest
movements, on and off the college campuses, to subject their dis-
obedience to law to realistic appraisal. The question that needs
to be put to young people of generous impulses all over the coun-
try is whether tactics relying on deliberate, symbolic, and some-
times violent lawbreaking are in fact contributing to the emer-
gence of a society that will show enhanced regard for human
values for equality, decency, and individual volition.
For some in the protest movement, this is not a relevant in-
quiry : their motivations are essentially illiberal and destructive.
But this is not descriptive of most of those engaged today in
social protest, including most who have violated the law in the
course of their protest : their intention is to recall America to
the ideals upon which she is founded.
We believe, however, that candid examination of what is oc-
curring in the United States today will lead to the conclusion
that disobedience to valid law as a tactic of protest by discon-
tented groups is not contributing to the emergence of a more
liberal and humane society, but is, on the contrary, producing
an opposite tendency. The fears and resentments created by sym-
bolic law violation have strengthened the political power of some
of the most destructive elements in American society. Only naive
and willful blindness can obscure the strength of these dark
forces, which, but for the loosening of the bonds of law, might
otherwise lie quiescent beneath the surface of our national life.
An almost Newtonian process of action and reaction is at work,
and fanaticism even for laudable goals breeds fanaticism in
opposition. Just as "extremism in defense of liberty" does not
promote liberty, so extremism in the cause of justice will extin-
guish hopes for a just society.
REFERENCES
1. "We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness."
2. King, "Letter from the Birmingham Jail" (1963).
3. See generally the illuminating article by MacGuigan, "Civil Disobedi-
ence and Natural Law," 11 Catholic Lawyer 118 (1965).
Disobedience to Law 23
4. See Copleston, History of Philosophy, vol. 3 (Westminster, Md., 1953),
at 348-49.
5. Locke, Second Treatise on Civil Government, ch. 19, "Of the Dissolu-
tion of Government," sec. 228.
6. Marshall, "The Protest Movement and the Law," 51 U. Va. L. Rev.
785,800 (1965).
7. MacGuigan, supra note 3, at 125.
8. Id.
9. Pierce and West, "Six Years of Sit-ins: Psychodynamics, Causes and
Effects," 12 Inn J. of Social Psychiatry 30 (Winter 1966).
10. Allen, "Civil Disobedience and the Legal Order," Part 1, 36 U. Cinn. L.
Rev. 1, 30 (1967).
11. Bayley, Non-violent Civil Disobedience and the Police: Lesson to be
Learned from India, at 15.
PART TWO
INSTITUTIONS OF THE POLITICAL
AND SOCIAL ORDER
25
CHAPTER 3
LAW AND THE GRIEVANCES OF
THE POOR*
... to the poor man, 'legal' has become a synonym for
technicalities and obstruction, not for that which is to
be respected. The poor man looks upon the law as an
enemy, not as a friend. For him the law is always taking
something away. Robert F. Kennedy
If it is true that the poor are especially prone to violence, it is
true in part because violence is a response to frustration frustra-
tion from never being listened to, from always being bypassed,
from continually being told to "come back later," and from having
a series of petty officials talk down to them. 1 The poor get into
legal trouble easier than anybody else. They seem to court ex-
ploitation. They seldom read the small print, and because they are
poor, they want things more.
W. T. Grant Co., a department store chain, conducts a campaign
to sell coupon books worth $200 in merchandise, payable in $10
monthly installments for 2 years ($240). The customer thus pays
20 percent interest on the money, regardless of when he uses the
coupons or whether or not he ever uses them. The customer bears
the risk of theft, loss, or nonuse of the coupons. Any default on a
monthly payment allows the retailer to get a judgment for the
whole $240 plus a $10 penalty. 2 The poor and the unsophisticated
will accept the offer to "buy now and pay later."
In 1957, Walker-Thomas, an appliance store in Washington,
B.C., sold a relief mother of seven $1,800 worth of merchandise
on installment contracts. In 1962 when she was within $170 of
final payment, she was solicited to buy a $515 stereo set. Sub-
sequent failure to make her payments on the new purchase re-
sulted in an action to repossess not only the stereo but all the other
* This chapter was prepared by Patricia M. Wald and Robert L. Wald of
the District of Columbia Bar, in substantial part on the basis of research
contributions by Jerome Carlin, Director, Neighborhood Legal Assistance
Foundation, San Francisco, Calif.; Linda R. Singer, Associate, Kurzman
and Goldfarb, Washington, D.C.; and Barbara Curran of the American Bar
Foundation, Chicago, 111.
27
28 Report of the Task Force on Law and Law Enforcement
items dating back to 1957. In obscure fine print the contracts had
said that an unpaid balance on any one item would be distributed
among all prior purchases. That meant everything could be taken
back. 3 As an added flourish to this kind of exploitation, holders-in-
due-course of such contracts purchased from the original seller
take the contracts free from any responsibility for fraudulent
inducement, mistake, unconscionability, or other legal doctrines
that inhibit exploitation of the unwary. 4
In 1966, eleven ghetto retailers in Washington, B.C., secured
2,690 repossession judgments, one for every $2,200 of their total
sales. The judgments against such buyers are generally by de-
fault. 5 The Federal Trade Commission found in the same city that
ghetto furniture and appliance merchants charged over 60%
more for their goods than those who sold to the general public. 6
They used installment contracts three times as often.
Collection practices against poor debtors are often unscrupu-
lous. Customers sign a "confession of judgment" along with the
sales contract; 7 as soon as they miss a payment, the seller can sue
for the total unpaid balance without notice. He can obtain a lien
on the debtor's property for that judgment. He can garnishee his
wages. Collection agencies specialize in in terror em techniques
against the nonpaying debtor by threatening phone calls, harass-
ment of employers, and verbal abuse. 8 Employers frequently
prefer to fire a casual employee rather than submit themselves to
such tactics or undergo the administrative inconvenience of wage-
withholding. 9
The poor tenant fares no better with his landlord than with his
creditors. His options are limited to a few square miles of slums
in the inner city. He pays suburban prices for peeling plaster,
unlighted hallways, defective furnaces, rubbish, and rats. Usually,
he signs a 30-day lease, terminable without cause by the landlord
and without notice for any rent default. He disclaims any war-
ranty of habitability ; and he agrees to make all repairs and to
accept the premises "as is," even to waive any damages for the
landlord's negligence. If he tries complaining to the authorities
about housing code violations, he may be evicted in retaliation. 10
Half the time he is in violation himself for overcrowding. 11
When the inevitable eviction notice comes if indeed it does
not go by default through "sewer service" the tenant has few
defenses. 12 Most courts do not see any relationship between the
tenant's duty to pay rent and the landlord's duty to keep the
premises in minimally decent condition. They are "independent
covenants." Stays of eviction are not normally granted for the
ordinary hardship of being thrown out on the streets. 13
Within the confines of their peeling walls, the poor reap the
whirlwind of poverty in their personal lives. A woman deserted
by her jobless husband cannot afford a divorce. She drifts into
Law and the Grievances of the Poor 29
casual relationships; both parties know there is no future mar-
riage in the cards. The children born of such transient unions bear
the stigma of illegitimacy. If the mother is on relief, the state may
step in and try to take the children away under a "presumption
of neglect" stemming from their illegitimacy. The couples who
do stick it out suffer the corrosive effects on their life and love of
ill health, ill housing, and hunger. There are seldom any marriage
counsellors for the poor. As a condition of welfare, wives must
sue the father for support of any children whether or not there
was ever a marriage. Old people must clutch at any available
relative for support, pulling their young down with them. Dignity
is not for the poor. 14 Too often the poor make each other the
whipping boys of their barren and desperate lives.
From birth to death the curse of poverty follows a man or
woman and the law gives little succor. Its trappings are of an
infinite variety. In one week the following situations found their
way into a single poverty law office in one city :
A child presumed legitimate because "born in wedlock"
must officially be pronounced illegitimate so that the mother
can bring a paternity suit to reimburse the welfare depart-
ment.
An abandoned mother with 7 children, three of whom have
chronic bronchitis, is evicted by the U.S. Marshal. The land-
lord calls the police to take the children away to the local
orphanage, but the mother threatens him with a kitchen
knife. She is taken away for mental observation. Her children
join 600 homeless offspring of the poor, hidden conveniently
"across the river" in the local orphanage. (The marshals will
not evict if there is 40% chance of rain. The poor pray for
rain.)
A 10-year old girl is slapped across the face by a teacher
for getting out of line waiting for cafeteria. When her mother
goes to the principal to complain, there are two policemen
waiting to tell her she has no case.
A 12-year old boy arrested for petty larceny is put into the
detention home because he has no 'suitable home' in which to
await trial. There he is homosexually attacked by gangs of
older boys, to the point where he must ask for guards to go
to the bathroom.
A tenant sued for eviction for nonpayment of rent in a
tenement where he has had no heat all winter is told in court
it is "irrelevant" that the landloard had 1200 Housing Code
violations outstanding on the property. Across the street in
the U.S. District Court the landloard is suing in "equity" to
recover the rent money the tenant's council has deposited in
escrow to pay for repairs. The landlord wants it with no
strings attached to use to pay off the mortgage. He is plan-
30 Report of the Task Force on Law and Law Enforcement
ning to sell to a new owner against whom the old violations
must be prosecuted anew.
The domestic relations court denies the petition to proceed
as a pauper in a divorce action of a welfare mother with
7 children, deserted 8 years ago. The judge says she can
"budget" her money to afford the filing fee, and her poverty
lawyer is "stirring up" litigation by representing her free.
The public housing authority denies space to a couple with
eight children living in desperate misery in two rooms. The
children are all theirs ; they have lived together for 10 years ;
he has supported the mother and children as best he could
all that time. They have never married because she cannot
afford a divorce from her first husband. The manager of the
project says they would be an affront to the morals of the
project; they are "living in sin."
A woman complains that she and her children are starving
but they can afford food stamps "only in summer." There is
a minimum purchase amount and in winter her utility bills
cost so much she can't save up the minimum.
An old grandmother would like to adopt her daughter's
abandoned epileptic son to prevent his being "put away," but
she hasn't the fee for the adoption papers and the Welfare
Department doesn't think she is a proper custodian.
The Welfare Department tells a grieving mother whose
8-year old son has been run over by a truck while playing in
the street that she must bury him in a strange funeral parlor
across town because that is the only firm the Department has
a burial contract with. The only coffin she can have is one
made out of cardboard.
THE POOR AND THE BUREAUCRACY
There are special agencies to help the poor. Too often, how-
ever, they create a new set of legal problems and spawn new
sources of frustration for the poor. The welfare system is the
foremost example. Its most basic purpose is to provide the
necessities of food, shelter, and clothing for the poor. Nearly
one out of every 25 people in the United States is on welfare.
As it now exists, welfare intrudes into every aspect of the
recipients' lives ; it determines where they live ; with whom they
live; whether children get new clothes for school; what kind
of food they buy and where ; where they go when they get sick.
It is like life-long probation. 15
For every person admitted to the welfare ranks, one or more
is denied. 16
An applicant becomes eligible for assistance when he ex-
hausts his money, gives a lien on his property to the Welfare
Law and the Grievances of the Poor 31
Department, turns in the license plates of his car and takes
legal action against his legally responsible relatives. When
he is stripped of all material resources, when he "proves"'
his dependency, then and only then is he eligible. 17
Denial is usually based on length of residence, existence of a
"responsible relative" (regardless of how he feels about you) ;
the age of your children, whether you are "employable" (whether
or not you actually have a job) ; and, until recently, whether you
had a boyfriend (regardless of whether he helped with money).
Need alone is never enough.
Once on welfare, continuation is precarious. Regulations
guide your every waking moment. In Los Angeles, the welfare
regulations weigh 115 pounds. 18 Since recent legislation, 19 there
must be a fair hearing on request before final withdrawal of
federally financed welfare programs. The hearing need not, how-
ever, come before the benefits are actually withdrawn. The
withdrawal can be based on information the recipient never
confronts, or obtained in violation of her rights to privacy and
to freedom from unreasonable search and seizure. 20 Welfare
recipients have been prey to the inspector's knock on the door
any time of day or night. 21 Overpayments, even when the agency
is at fault, can be collected at any future date from the recipient.
The Welfare Department has a lien on whatever meager re-
sources the recipient may pass on to heirs.
And there are always the fluctuations of legislative mood
and public feeling to contend with, over and beyond agency
administration. "Welfare cuts," "crackdowns," new and more
restrictive conditions come with political change. The "right"
to any kind of welfare grant on any condition is always tied
to the basic appropriation of money about which there is never
any certainty for the poor. Consider the ramifications of a recent
New York 5 to 8 percent across-the-board budget cut in welfare
allowances to one family. 22
"My children will probably have to starve," said Mrs.
Escobar, "because right now, I can't get along on what
we're getting."
Mrs. Escobar and her three children, ages 4-8, (an
average welfare family) are presently living on $2536 a
year in relief payments. That includes $100 every three
months in a flat grant to pay for essentials not included
in the $2,136 basic grant.
However, because of the Legislature's welfare cut in the
budget, $40 of the basic grant will go. And because of a
new welfare assistance bill, all of the flat grant will go.
"It is not enough. The food we've been having is not
enough. I would like my children to eat. I would like them
32 Report of the Task Force on Law and Law Enforcement
to have meat every day." Mrs. Escobar said she only eats
meat "once in a while. Now I won't eat any."
Their troubles are many: she has asthma and stomach
trouble. She will undergo surgery Monday to remove a
tumor from her left side. She was deserted by her husband
four years ago in Puerto Rico. Her oldest son, Raphael
Zapata, has asthma. The flat grant elimination, which in-
cludes clothing, troubles her the most.
"My oldest son must have warm clothing in the winter,"
she said. "I just don't know what to do. I just won't be
able to send him to school. As it is now I can't dress any
of the children right."
And now what can Mrs. Escobar do? She doesn't know
who her Assemblyman is. She doesn't even really know
where Albany is. So she just shrugs and says: "I'll try."
Public housing is society's good will gesture toward the low
income renter who cannot afford decent private quarters at
today's market rates. There is, however, never enough public
housing for all those who need it. Waiting lists are 3 and 4 years
long. As a result, public housing administrators are driven to
scrupulous scrutinization of applicants to eliminate all but the
most worthy. 23 Unwed mothers, if not disqualified altogether,
may be limited to one illegitimate child ; couples must be married
no matter what the circumstances. Thirty day leases, terminable
at the landlord's will, were until recently the standard for public
housing as well as private slumlords. 24 Ironically, public housing
projects often hold themselves out as exempt from the municipal
Codes governing private landlords. 25 Although rent-controlled,
public housing in most cities elevates its poor tenants very little
above the slums from which it rescued them.
Education is the latchkey out of the prison house of poverty,
the means by which the second generation of immigrants can
traditionally step up the economic and social ladder to middle
class respectability. In actuality, the slum child today faces not
only dilapidated buildings, outmoded equipment, inferior or
undertrained teachers, but also an administrative bureaucracy
determined to push out all nonconformists and troublemakers.
An overwhelmed public school system has only time to teach those
who learn easily. The slow learner, the emotionally mixed-up
and acting-out adolescent is suspended and expelled when he
proves "disruptive." Such suspensions are often accomplished
with no prior notice to the parents ; the child gets no hearing
or opportunity to confront his accusers on questions of fact;
there is no right to have counsel present to speak for the child.
Yet the consequences to his future in an age of mass special-
Law and the Grievances of the Poor 33
ization are unthinkable. Most big city school systems have "spe-
cial adjustment classes," "twilight schools" for some of the edu-
cationally or socially intolerable, but by every evaluation they
are holding actions up to the dropout age. They label and isolate,
and so destroy the urge to learn. In every city, hundreds or thou-
sands of school-age children wander the streets, courting trouble
with the law, because they have no legally enforceable right
to stay in school.
Besides the agencies that offer direct help to the poor, there
are those that are supposed to protect the poor from their poten-
tial exploiters : consumer fraud bureaus, human relations and
antidiscrimination commissions, housing code authorities. Yet
their record of achievement in championing the poor is gen-
erally an unprepossessing one, for several reasons.
These agencies have adopted too passive a stance; they tend
to wait for complaints to come to them. The poor are traditionally
apathetic, and their articulation before grievance bureaus is not
formidable. Either they don't know the agency exists or where
it is located, or they don't want to waste a day's pay going
downtown. Or, more basically, they don't expect it will do much
good. 26
Housing code authorities are typical. If they rely on com-
plaints by tenants, enforcement can only be sporadic, piecemeal,
and even unfair. 27 Yet their resources are seldom adequate to
allow systematic and periodic general inspection. When they do
locate violators, they generally "negotiate" for compliance within
a "reasonable time." Periods of grace and extension are liberally
allowed; a tenant can live without heat or under a leaky roof
18 months before the landlord finally must comply. Even then,
most housing codes carry only criminal penalties which judges
are reluctant to impose. Landlords are rarely sent to jail; the
fines are miniscule.
Insufficient manpower, low salaries, high turnover characterize
these "protector agencies" of the poor. They are the first to be
cut from the budget and the last to be reinfused. Those that
occasionally try "aggressive action" on the part of their cli-
entele bring down the wrath of "harassed" merchants, "strug-
gling" landlords, "red-taped" employers. As a result, they would
rather "advise," "recommend," "mediate," and "refer." Few
have real teeth to order businesses to cease and desist, to impose
substantial and cumulative civil penalties, to initiate injunctive
court proceedings.
The administrative process has proved of little help to the
poor. Agencies like Welfare, designed solely for their benefit,
acquire an antiwelfare bias: they become instead guardians
of the public purse. 28 The administrators must to survive be-
come highly sensitized to community and legislative attitudes
34 Report of the Task Force on Law and Law Enforcement
about "chiseling." Caseworkers in turn are victims of a "paper-
work explosion" to insure that no recipient gets an unauthorized
nickel. 29 They have too little time left to help. 30 The bigger the
bureaucracy, the less human the response. Responsibility for
putting a poor person on or taking him off of welfare becomes
fragmented ; he never knows whom to blame, the caseworker,
her supervisor, the hearing officer, the head of the agency, the
legislature who fails to vote the funds. 31 In such a Kafka-like
regime, he is denied even the luxury of hate.
As for the "do-gooder" agencies that claim to protect him from
commercial exploitation and racial discrimination, he remains
skeptical. Their strength and numbers do not vary with his
need, but with the general good will and legislative largesse.
Housing code inspectors rarely can compete with welfare inspec-
tors in the blood bath of budget making.
THE COURTS AND THE POOR
The last resort of the poor as well as the rich is in the courts.
They are there to do justice, whatever the cost. They must
stand between the individual citizen and the carnivorous mer-
chant, the profiteering landlord, the arbitrary administrator. If
he cannot find justice there, the poor man is lost. 32
The courts of the poor are the courts of "inferior" jurisdic-
tion, the "people's courts." The judges in these lower courts tend
to be younger, less experienced, from less prestigious law
schools. 33 The caseloads of these courts tend to be the greatest. 34
The deliberate pace of the superior courts is not for the poor;
their tribunals more nearly resemble the racetrack on opening
day. 35 Cases of enormous importance to the participants are
handled in an assembly-line fashion, with less than five minutes
to a case. 36
Specialized "social" courts family courts, drunk courts,
juvenile courts or specialized "legal" courts landlord-tenant
courts, small claims courts handle the bulk of cases involving
the urban poor. In the "social courts" the judges rely, too heavily
if at all, on reports of probation officers, intake officers, social
workers, and referees to dispose of the parties' complaints. The
reports are often not available to the parties, they contain
inadmissible and hearsay evidence, and their drafters cannot
be cross-examined. In the "legal courts," no account at all is
taken of the equities: the tenant owes rent, the debtor owes
money; that is that.
In these courts, parties are most often not represented by
counsel; the proceedings are not recorded; appeals are infre-
quent. 37 Dispositions are commonly arrived at in such courts
without a full adversary hearing. In the Municipal Court of
Law and the Grievances of the Poor 35
California, only 5 percent of all dispositions were after trial,
compared to 10 percent in the Superior Courts. 38 Without
a formal challenge to the other party's facts in open court, the
poor person is usually at a disadvantage.
The small claims court stands as a prime example. Created to
help the poor creditor collect his claims without fuss or fanfare,
it has been perverted into a mass collection agency for stores
and businesses against the poor. A study of the Oakland-Pied-
mont Small Claims Court showed that two out of every three
users were either business firms (jewelry and department stores,
mail order houses, finance companies) or local government agen-
cies (principally the County of Alameda with claims for hos-
pital services rendered and for unpaid taxes). Most (85 percent)
of these organization plaintiffs filed several claims at a time,
and were regular users of the court. 39 By dispensing with "legal
technicalities" and emphasizing "settlement," small claims courts
pit unskilled and inexperienced debtors against the paid agents
of companies who handle such claims by the thousands.
The poor do not collect in small claims courts; they are only
collected from. In Philadelphia, the dockets of the Magistrates
Court do not even have a form in which to record a judgment for
the defendant; court clerks there cannot recall such a happen-
ing in 20 years. 40 In Washington, defendants most often agree
to a "settlement" with the collection agency attorney out of the
judge's hearing, involving only a token reduction. When counsel
on both sides are present, however, the claim is more likely to be
reduced by 50 percent or dismissed altogether. The collection
lawyer will frequently postpone the case if he suspects an
unfriendly judge, and then will charge the costs to the debtor.
A judge in the Washington, B.C. Small Claims Court re-
marked about the predominantly Negro poor who are its de-
fendants : "It's a miracle they don't burn down the courthouse.
All they see is white people enforcing white laws designed to
do them in." 41
Another obstacle to justice for the poor in our courts is the
high cost of litigation. 42 There are filing fees to initiate suit
($10 in the District Court in Washington, B.C.; $32 in the
Superior Court in California) ; process serving fees ($3 in
B.C.) ; jury fees of $8; witness fees of $20 a day in B.C. In
some proceedings, special costs add up : $100 for appointed
counsel for the defendant in an uncontested divorce case, $50
for a blood test in a paternity case. Security bonds are often
required: in replevin, 10 percent of twice the value of the goods;
in rent actions, twice the amount owed. Surety bonds cost the
poor more because they are poorer risks. Then for pretrial
preparation there may be interrogatories, subpoenas duces tecum,
depositions, and discovery. Poor persons or their lawyers can
36 Report of the Task Force on Law and Law Enforcement
seldom afford any of these. The transcript itself goes for about
$1.00 a page. Investigators cost $10 an hour plus a retainer.
Expert witnesses to testify on quality of products in con-
sumer cases and property evaluation in landlord tenant cases-
can cost up to $300 an appearance. Publication costs in non-
resident actions may accumulate to $100 or more.
Many states have forma pauperis laws which will exempt
some of these fees for poor persons. But typically the exemp-
tions are limited to the fees of court officials, filing and clerk
fees. They do not cover the area of charges to independent
entrepreneurs who carry on their businesses in the courthouse
corridors and courtrooms, and without whose cooperation liti-
gants may not proceed. Thus forma pauperis laws will not usually
cover the court reporters, medical or other experts, or surety
companies. Moreover, the laws are permissive; it is up to the
judge's discretion to decide who deserves this privilege. Often
judges will decide that the poor do not need certain kinds of
legal relief allowed others, such as divorce or personal injury
claims. The forma pauperis laws thus become a screening device
for judges to prejudge who can enter the arena of justice. They
also allow a measure of control over the legal traffic of the
poor not obtainable over paying litigants.
There is no question that the costs of justice impede the ef-
forts of counsel for the poor. OEO legal service programs have
small litigation funds which can be exhausted by one or two
major test cases. They must often tell the clients they cannot go
to court unless they can raise the fees.
It is time for our courts to do away with this vestige of justice
bought and sold in the courthouse.
[W]hy have we put the administration of justice by one
of the three great coordinate branches of Government on a
basis of pay-as-you-go? No one would ask the Executive
Branch, or the Legislative Branch to justify itself as a self-
liquidating institution. The people are perfectly content
to pay for those services by way of taxes. Why should not
the people be equally entitled to the service of the Judicial
Branch of Government without being required to pay fees
every time they turn around, or to take a pauper's oath
in order to get into the courthouse. . . , 43
Officials now occupying a quasi-official function like court re-
porters or process servers should be brought under the court
umbrella and paid salaries so that their essential services need
not be bought. A court-controlled bonding agency has been
suggested to adjust security to need and means. A revolving
fund for the necessary costs to outsiders like expert witnesses
and investigators would aid the poor on the "extras." There
Law and the Grievances of the Poor 37
should also be some mechanism similar to the Criminal Justice
Act provision to allow litigants to pay what they can afford
in such cases and be exempted from the rest.
THE RIGHT TO COUNSEL
Our system of justice is an adversary one. To make it work,
there must be lawyers on both sides. The poor traditionally have
the least access to private lawyers. 44 Those they have used have
generally been the least competent and responsible. They lack
the money to pay the lawyer and, sometimes, to sit out the course
of extended litigation. 45 They don't know many lawyers. 46 A
California survey found only 30% of the poor persons inter-
viewed had any contact with lawyers; only 8% of persons with
commercial grievances knew enough to seek legal help. 47 When
a poor person does go to a lawyer, it is usually too late ; his goods
have been repossessed, the eviction notice served. Preventive
legal services are an unknown commodity.
Legal Aid Societies have been in existence since the turn of
the century. 48 But despite dedication, they could not make a dent
in the needs of the poor. In 1949 there were 37 legal aid offices
and 20 Bar Association offices in America where civil indigents
could go for help. Less than 4 million dollars a year was ex-
pended in civil legal aid. They tended to shy away from causes
than would engage them in controversy or antagonize private
contributors. 49
Not until the 1960's did more aggressive efforts for the poor
emerge. Gideon v. Wainwright (392 U.S. 335) mandated counsel
for serious criminal offenses; In re Gault (387 U.S. 1) did the
same for juvenile offender; the Legal Services Program became
an intrinsic part of the war against poverty. 50
The OEO program focused on accessible neighborhood law of-
fices, participation of the poor themselves in the governing bodies
of the program, aggressive action on behalf of the poor in trying
to reform the substantive law and the institutions which affect
their lives. By 1968, 250 such programs existed, handling almost
800,000 cases a year, and winning 70% of their court trials (40,-
000) and 60 c /c of their appellate cases (400) ; and 1,800 staff
lawyers labored for the poor in 85 neighborhood offices in 46
jurisdictions. One bar association president said: 51
The one institution with power to raise [the poor person's]
sights beyond the invisible wall and the invincible system is
the all too new Legal Services field office. For the very first
time, he has at his disposal the one tool that he could never
afford a well trained professional whose sole and only in-
terest is to assist him in his sorry plight. More important
38 Report of the Task Force on Law and Law Enforcement
than the [legal] assistance he is receiving is the fact that
this is his. This in itself gives him a new status and, even
more, it gives him hope.
They have begun the long range task of changing the law of
the poor. Through their efforts, in at least some jurisdictions,
not only must there now be hearings prior to welfare cutoffs, 52
but welfare departments cannot set flat ceiling rates on payments
to large families. Inspectors cannot invade recipients' privacy
at any hour ; grants cannot be cut off merely because the mother
is living with or seeing another man. Children cannot be taken
away solely because they are illegitimate and their mother is on
welfare. Tenants cannot be evicted because they report code
violations ; public housing residents must have some kind of hear-
ing before eviction. Leases executed when code violations exist
may be declared illegal and unenforceable against the tenant.
Grossly exorbitant interest charges and repossession rights may
make a contract "unconscionable." Suits have been brought to
declare housing authorities' location of projects in de facto segre-
gated areas unlawful; to require counties to take advantage of
food stamp programs and to administer them in a way that will
benefit the very poor; to insist on apportionment of education
funds so that disadvantaged children will get as much or more
than the children in advantaged areas; to enjoin urban renewal
projects where adequate provision is not made for relocating
present area residents; to outlaw garnishment of poor debtors'
wages ; to require credit companies to keep accurate records and
open their files to complaining victims ; 53 to compel federal gov-
ernment agencies to insure adequate low income housing for
employees before they move to the suburbs.
But the OEO lawyers are the first to admit they are just
scratching the surface. Most of them are swamped in volume,
constantly torn between the demand for individual service and
the need for concentration on basic law reforms. They are mostly
young ; after a few years and because of economic demands, they
move out into more lucrative private practice or government
service.
In this program you get used to having everyone mad at
you. You seldom get to help your client in any basic way
out of the interminable mess he lives in. You stay the evic-
tion for one more week ; get him a few more dollars on wel-
fare; maybe keep the disturbed kid in his home a few
months longer on probation before he gets in real trouble
and is put away in training school. But so what, big deal.
We don't get jobs for people; or build them houses; or give
them real hope. We just take the edge off of the "big lie."
Like demarol while your leg is being slowly amputated.
Law and the Grievances of the Poor 39
The city agencies look upon you like a seven year plague :
wait and suffer and it will go away. They tell the lawmakers
and the budgetmakers plaintively how much money you cost
them with your endless litigation over "hopeless cases" and
small sums. The judges are worried about backlogs and
court delay and cannot stifle their annoyance when you ask
for jury trials in eviction cases, interpose eight defenses
(none of them yet established at law) to a rent action; file
25 forma pauperis divorce petitions in one week.
The appeals and test cases you hear so much about. They
take so long. The test may be a success but the client has
died, or been evicted, or moved away without his money.
It takes over a year to get a case up to the Court of Appeals ;
our program has been going on for almost five years and
we're just getting decided the cases the law professors were
talking about back in 1964. The most basic kind of law re-
form will take decades in the courts; yet people think we
should have gotten it done already. By the time you win the
case, it's "old hat" in the law journals, and they tell you you
should be thinking more innovatively. An antitrust suit may
drag on in the courts for 5 years with teams of f ulltime law-
yers and millions poured into ; but a landlord-tenant victory
that takes that long leaves everyone mad at you. 54
"The vast needs of the poor for legal services are not being
met," an OEO-commissioned report says in 1969. 55
Estimates of the number of poor persons needing subsidized
legal services goes as high as 40 million and rarely as low as 10
million. The American Bar Association says up to 20 million
cases need free legal counsel. That would cost $400-$600 million.
We now spend in the vicinity of 30 million. Individual legal serv-
ice lawyers are now handling hundreds of cases a year, well
beyond the toleration level for high quality service. If 250 OEO
services programs and the legal aid programs which operate in
600 of the nations 3,100 counties have not been able to even
plumb the need, where do we turn ? If there were to be one law-
year for every 6,000 poor, it would take 5,800 lawyers ; if lawyers
were to be available to the poor in the same ratio as the general
population it would take 137,000. One urban law expert pessimis-
tically summed it up : "If all the attorneys in the United States
did only legal aid work, the resources would still be inade-
quate." 56
Obviously, then, the OEO effort and the similar VISTA and
Smith Fellows programs needs not only continued support but
vast expansion if it is to make the desired impact. The legal
services program will otherwise be another in a long line of broken
promises to the poor. The expansion of the right of counsel into
40 Report of the Task Force on Law and Law Enforcement
every aspect of our "law-ridden nation" means that there must
be counsel to implement that right.
But even that is not enough. Radical experimentation must
simultaneously pursue other lines to supplement the poverty
lawyers. One way is to reduce the need for fullscale lawyers by
creating mechanisms in our society for problem solving. Thus
effective complaint or grievance centers and consumer fraud
bureaus put the burden on government to right its own wrongs
and to police sales practices. An American adaptation of the
Scandinavian ombudsman has been urged, independent of gov-
ernment yet a public servant ; 57 the practice is already being
experimented with in Buffalo by OEO. Washington, B.C., had
an experimental citizens complaint center and concluded from
the experience that a "special expediter" in the Mayor's office
and a "public protector" accountable to the City Council were
necessary concomitants to any such center. 58 Lay mediators,
community courts to settle disputes short of official justice, are
another avenue of relief. An OEO-sponsored arbitration project
in Cleveland deals with landlord-tenant differences ; a mediation
service in Los Angeles ; a rabbinical court in Boston to bind fel-
low communicants. The American Arbitration Association is
training indigenous community leaders as conflict resolvers in
their own neighborhoods, and it also offers its own services to
merchants, landlords, and governmental agencies such as schools
and urban renewal agencies in settling disputes with poor citi-
zens.
Self-help is being practiced by the poor themselves in banding
together in tenant councils and welfare rights organizations to
bargain collectively for their rights in the tradition of the early
labor organizations. They negotiate, demonstrate, picket, boycott
and even strike. In a few states they have received statutory
recognition of their right to do so. 59
There are, too, a burgeoning number of institutes financed
by private foundations for research and litigation on urban
problems. They specialize in the test case, the investigative re-
port, and potentially in representing the interests of the poor
before municipal bodies and before state and national legislatures
and administrative agencies. 60
Worthy of duplication also is the device of allowing counsel
fees to be taxed against the losing party in certain kinds of suits.
This is now done in Clayton Act and Civil Rights Act cases
and might well be done in tenant suits and consumer fraud
actions. Or the government itself might prosecute the claim by
assignment as it now does in wage collection cases and reciprocal
support actions. This technique might profitably be carried over
into local support actions for poor wives. Several of the new
welfare and health care laws include the right to a fair hearing
Law and the Grievances of the Poor 41
and insist that counsel be provided, if necessary at agency
expense. HEW has recently announced its financial support of
legal service programs by local welfare agencies that will provide
across the board legal help to recipients. 61 The lawyers can
come from the private sector, OEO, or public agencies (if no
conflict results).
Finally, there is a resurgent interest in the development of
legal paraprofessionals who can handle the tremendous volume
of paperwork in the investigating, interviewing, and "social
work" that consume so much of a lawyer's time. Such legal
specialists could leave the lawyer free to focus on the develop-
ment and implementation of the winning strategy for the client.
Initial research and limited experimentation has shown, how-
ever, that development of these legal technicians is no easy
task: the lawyer yields his prerogatives no matter how cum-
bersome reluctantly. But efforts along these lines reap a double
harvest: less routine and more productivity for the lawyer,
and meaningful jobs for others.
But the legal rights of the poor cannot be left only to OEO,
Legal Aid, and public agency lawyers. The private bar must
bear its share. In the past it has performed charity services
through Bar Referral services, seldom taken advantage of by
the poor. New directions are mandatory. One suggestion has
been a mass program for assigning counsel to civil indigents
in much the same fashion as is done for the criminally indigent.
Some civil equivalent of the Criminal Justice Act would be nec-
essary to compensate such counsel. 62 Several factors mitigate
against success of any such scheme, however.
Experience with assigned counsel under the Criminal Justice
Act has shown that experience is the key to quality representa-
tion. 63 And "compensating counsel does not itself guarantee
better quality criminal defense." 64 Specialists in the field are
preferred, whether the field be criminal or civil. Young lawyers
in large firms do not need the money; in fact, many drift away
if they think the need is being met by those who do need the
pay. Despite good intentions, the occasional appointment must
be given lower priority than the firm's retainer clients. Poverty
law is, moreover, a specialized business : the OEO Poverty Law
Reporter competes with the CCH Tax Service in the number of
pages and the complexity of content. Representing a client at a
welfare or social security hearing is just as demanding as repre-
senting a corporate client before the Federal Trade Commis-
sion. 65 Consumer and landlord-tenant law is probably developing
faster than any other branch of law today ; it requires constant
updating as well as intense familiarity with procedural forms
and rules to do an adequate job. Poverty law is no more a
"one-shot deal" than antitrust law.
42 Report of the Task Force on Law and Law Enforcement
The poor need specialized, continual legal help. Their civil
problems are multifacted and require follow-up and time. And
an assigned counsel system does not by itself provide the answer.
A variation on the assigned counsel system is Judicare,
which introduces the element of free choice. The poor man can
pick out his own lawyer, and payment will be at specified rates,
paid from public funds. The private practitioner in turn can
integrate his poor clients into his regular practice. It is particu-
larly attractive to struggling young black lawyers who want
to serve their own people. The system has been tried in Wisconsin
and New Haven. The Wisconsin plan pays 80 percent of the
state minimum fee schedule (about $16 an hour). Judicare
costs more than legal services attorneys (an estimated $60-70 per
case completed) but a mix of the two is probably the most desired
system. 66
Other proposals for private bar participation are cropping up.
Private law firms might donate the services of young associates
for periods up to 18 months to neighborhood offices, OEO or
jointly run with other firms. Backup clerical, library, messenger
and senior consultative help would accompany the donation. 67
The downtown firm might establish its own branch office in
the ghetto. Members and associates would be rotated to the office,
and enjoy the same firm privileges and status for their time so
spent as their associates serving the more traditional clientele.
Such a setup is billed to attract top young talent which wants
to serve the poor at the same time they build a personal future.
It represents a long-term commitment of firm resources to public
service in an organized, effective manner. Two major law firms
in New York and Baltimore have already pioneered this effort. 68
Finally, there are constructive proposals to bridge the gap
between the increasing black majorities in the inner cities and
the predominantly white legal communities. Only 1 % of lawyers
are black. Those black lawyers that do practice among the city's
poor are usually underfinanced, overworked, and overwhelmed
with charity cases. OEO lawyers increasingly recognize the
desire of black people to be represented in proportion by their
own people. One black lawyer put it this way:
One need not be a "black racist" to see that a succession
of young white knights on their legal chargers, over the
long run, can have a negative effect. Disrupted self-image
is as much a part of the ghetto syndrome as poverty. The
black professional performing adequately and competently
can provide role models that go a long way toward restoring
the confidence that is a precondition for a people seeking
nondestructive means of coping with their problems. He
also can be the most potent recruiter of students for law
Law and the Grievances of the Poor 43
schools. By example he can encourage young blacks to see
the law as a profession relevant to the needs of their people.
Irrational forces are intensifying in the ghetto ; the lawyer
is an excellent agent for rationalizing those forces and di-
recting them into constructive channels. It is likely that
only blacks dealing in good faith wth other blacks can ac-
complish this.
He suggests that downtown white firms subsidize black lawyers
to work with the poor in the ghettos. The financial backing would
allow the black lawyer to concentrate on high quality service
to his people without fear of economic ruin. The firm could
send its young associates who want this kind of experience to
work with him. He could call on the firm's expertise to incor-
porate black businesses, and he could be house counsel to poverty
rights groups. Affiliations with law schools might provide addi-
tional manpower in the way of third year law students. 69
Providing adequate legal services for the poor is a job just
begun. The OEO effort of the past five years has served mainly
to show how huge are the dimensions of the job; what the pit-
falls of high volume caseloads are; how laborious the process
is of reforming a body of substantive law in effect since 1776;
how frustrating serving an indigent client can be and how time-
consuming and specialized is the practice of urban poverty law.
Even with substantial expansion such offices can only do part
of the job. New ways have to be found to provide alternatives
to legal action for solving the problems of the poor ; more daring
use must be made of nonprofessionals to perform subsidiary
tasks now done by lawyers; and basic reorientation of institu-
tions serving the poor is needed so that they are less often the
poor's adversary. Concerted lobbying efforts are essential to
block repressive laws, incorporate fair procedures, expedite
modernization of statutory law governing merchant-consumer,
landlord, tenant, government agency-citizen relations. The pri-
vate practitioners can by no means relax with the idea that a
corps of young, dedicated lawyers are "out there" doing their
job. In no foreseeable future will there be enough lawyers to do
justice. The firms must build into the fabric of their practice
institutionalized and efficient ways to participate in civil jus-
tice. They must give of their time, money, and thought.
The cost of all this may seem astronomical. The alternative,
however, is to build to the breaking point the accumulation of
grievances that now have no effective means of redress in our
political or legal system. We already know that this cost is too
high for our society to bear.
44 Report of the Task Force on Law and Law Enforcement
CONCLUSION
The poor have, if anything, more legal problems than the
rest of society. The recent surge of efforts on their behalf only
emphasizes the terrible needs yet unmet in our civil justice
system. They make only a long-delayed beginning; new ways
and more lawyers are desperately needed. Long-range strat-
egems to reform laws and institutions that work unfairly against
the poor must be simultaneously pursued along with justice in
individual cases. More counsel for the poor is basic, the sine qua
non. Court costs should be abolished. The poor need legal re-
dress for their legal grievances; to be poor is bad enough; to
be poor and denied justice is intolerable.
REFERENCES
1. Among the most intense grievances underlying the riots of the summer
of 1967 were those which derived from conflicts between ghetto resi-
dents and private parties, principally the white landlord and merchant.
Report of the National Advisory Commission on Civil Disorders (herin-
after cited as Kerner Report) (Washington, D.C.: Government Print-
ing Office, 1968), at 92.
2. Law in Action, June, 1968, at 3-4; See W. T. Grant Co. v. Walsh, 36
Law Week 2626 (N.Y. Dist. Ct. 1966).
3. Wright, "The Courts Have Failed the Poor," New York Times Maga-
zine, Mar. 9, 1969, at 102.
4. See generally, Littlefield, "Good Faith Purchase of Consumer Paper:
The Failure of the Subjective Test," 39 So. Calif. Law Review 46
(1966). Nine states have modified, to some degree, the absolute im-
munity of the holder-in-due-course.
Massachusetts, Oregon, Vermont, California, Delaware, Hawaii, New
York, Pennsylvania and Texas. Most of these states however retain
stipulations that the buyer notify the finance company of any defense
within ten to fifteen days, after which all other defenses are waived.
See also, S. 2589, 90th Cong., 2d sess. 4.102 (1968); Report Relating
to Consumer Protection in the District of Columbia, at 5-9. The new
Uniform Commercial Credit Code, proposed by a special committee
financed primarily by the credit industry itself, recommends that the
doctrine be abolished.
5. A recent study in the District of Columbia found that in almost 70% of
the default cases, the seller had assured the debtor that he need not
come to court. Washington Post, Sept. 21, 1968, at Bl, B2. 90-95% of
consumer cases in New York are default judgments. Caplovitz, Rubin,
Sparer & Rothwax, Default Judgments in Consumer Actions: The Sur-
vey of Defendants, Sept. 1965, at 1 (mimeographed release).
6. Federal Trade Commission, Economic Report on Installment Credit and
Retail Sales Practices of District of Columbia Retailers 10 (1968).
FTC Chairman Paul Rand Dixon says that the agency would have
found much the same situation "if we had studied Philadelphia, Louis-
ville, or San Francisco." 2 Law in Action 1 (April 1968)
7. Thirty states allow confession of judgment with certain limitations. Five
states and the District of Columbia have ended the practice. Senate Com-
Law and the Grievances of the Poor 45
mittee on the District of Columbia Report Relating to Consumer Protec-
tion in the District of Columbia, S. Rep. No. 1519, 90th Cong., 2d sess. 14
(1968).
8. Garney Miller v. Retail Adjustment Bureau U.S.D.C. #900-69.
9. The Consumer Credit Protection Act recently limited garnishment to
25% of a debtor's disposable income. Publ. L. No. 90-321, Tit. II, 202
(May 29, 1968). Although some states require that the judgment debtor
be notified before garnishment is served, the requirement is generally
ignored in practice. Note, "Consumer Legislation and the Poor," 76 Yale
L. J. 745, 766 (1967). See Jordon & Warren, "The Uniform Consumer
Credit Code," 68 Colum. L. Rev. 387, 438 (1968). Brunn, "Wage Garnish-
ment in California: A Study and Recommendations," 53 Calif. L. Rev.
1214, 1245 (1965). Labor organizations have apparently been unable to
bargain effectively on this issue. Id. See also Wald, "Law and Poverty"
(prepared as a working paper for the National Conference of Law and
Poverty, June 23, 1965). Note, "Project: Legislative Regulation of Retail
Installment Financing," 7 U.C.L.A. L. Rev. 741-42 (1960).
10. See Edwards v. Habib, 397 F. 2d 687 (C.A.D.C. 1968): Wright, supra
note 3, at 108.
11. Id. at 110. In 1964, Detroit redevelopment projects resulted in the uproot-
ing of 5,530 families.
12. LeBlanc, "Landlord-Tenant Problems" in The Extension of Legal Serv-
ices to the Poor" 52-53 (U.S. Dept. of HEW, 1964). Sewer service is
just as pervasive in the debtor field. An estimated % to % of consumer
defendants in New York City are victims of sewer service. See Note, 2
Colum. J.L. & Soc. Prob. 1, 10 (1966) ; Caplovitz, Rubin, supra note 5, at
5; see generally Note, "Abuse of Process: Sewer Service," 3 Colum. J.L.
& Soc. Prob. 17 (1967). A study of the Magistrate's Court in Philadel-
phia showed that:
"... constables are required by law to file a return of service stating
the precise manner in which service was made. This return is the only
evidence available to the magistrate to enable him to decide whether he
had jurisdiction over the person of the defendant. Nevertheless, in one
court no returns of service are made. In other courts, where thousands of
returns of service were examined by Justice Investigators, it was found
that hundreds of returns were defective on their face, and in all those
cases the magistrate had proceeded to give judgments by default.
"In some cases judgments were entered even though the constable's
return stated affirmatively that he had been unable to make service at
all."
Report of the Attorney General on the Investigation of the Magisterial
System 30 (Department of Justice, Commonwealth of Pennsylvania,
1965).
13. A few jurisdictions have enacted laws allowing tenants to collectively
deposit rent into court until the landlord makes the necessary repairs,
or allowing the city to make the repairs and charge the landlord. Neither
have been a great success, primarily because there has been insufficient
funds to accomplish substantial renovations of badly deteriorated build-
ings. See, e.g., Multiple Residence Law 305-a (outside New York City) ;
Multiple Dwelling Law 320-a (New York City). Michigan has gone the
furthest to enact the "first substantial change in 1,000 years" in com-
mon law landlord tenant relationships. In 1968 it passed a new law to:
Require that every lease contain a pledge by the landlord that the
premises are habitable and that they will be kept in that condition.
The tenant thus has a cause of action if the landlord fails to comply
with the covenant.
Prohibit evictions in retaliation for the exercise of lawful rights,
46 Report of the Task Force on Law and Law Enforcement
such as reporting violations of housing codes to the city government.
Make code enforcement a civil rather than a criminal matter, and
an enable tenants to take court action to obtain enforcement. Legal
remedies available to the tenant include injunctions, repairs by the
city with a lien put on the property for the cost, appointment of
receivers to make repairs, and withholding of rent in an escrow
fund for repairs.
See 3 Law in Action 5 (August 1968)
14. Until the Supreme Court decision in King v. Smith, 392 U.S. 309 (1968)
many jurisdictions would deny relief altogether to any mother who had
a "man in the house" regardless of whether he helped support the child-
ren. Most recently, the Court has invalidated the practice of most states
to deny welfare to anyone not a resident of the state for at least one
year, regardless of need. Shapiro v. Thompson, 89 S. Ct. 1322 (1969).
15. Wright, supra note 3, at 111-12. Contrasts this with the attitude taken
toward the numerous other subsidy holders in the American economy.
Now a new philosophy of social welfare is struggling for accept-
ance in this country. This modern school of thought considers de-
pendency a condition ordinarily beyond the control of the individual
and seeks to establish the status of welfare benefits as rights, based
on the notion that everyone is entitled to a share of the common
wealth. This conception of welfare seems justified in view of all the
others in our society who receive government subsidies and largess,
not as a matter of privilege or charity but as a matter of entitle-
ment. For example, the transportation industry is dependent on
public assistance; airlines are subsidized on short hauls; shipping
is directly subsidized and indirectly aided by laws favoring Ameri-
can-flag vessels ; trucking is aided by public roads. Second-class mail
rates are essentially a subsidy to the magazine industry. Home-
owners are given many types of financial guarantees and assistance,
while farmers have been beneficiaries of public-assistance programs
for many years. Other subsidies are less obvious. Docks and airports
are supplied to the shipping and airline industries at public expense-;
channels of the radio and television spectrum are given without
charge to the broadcast industry. Intellectual activity, especially
scientific research, is also subsidized. Perhaps the biggest subsidies
of all are some of our tax exemptions.
Despite the pervasiveness of public assistance throughout our
economy, only the welfare recipient is singled out for special, de-
grading supervision and control. When a farmer receives Govern-
ment subsidies, the payments are not presented as relief but as an
attempt to restore an imaginary balance in the economy, thrown out
of kilter by large anonymous forces depressing agricultural prices.
16. Professor Edward V. Sparer would base a right to public assistance on
a "right to life" implicit in the Constitution. He views the refusal or
withdrawal of welfare from a poor family as a "taking of life." Address
to National Institute for Education in Law and Poverty, Washington,
D.C., May 9-11, 1968, 3 Law in Action 7 (May 1968).
17. Report by Greenleigh Associates to the Moreland Commission on Welfare
78 (New York).
18. Selby, "Watts: Where Welfare Bred Violence," Reader's Digest, May
1966, at 69.
19. 42 U.S.C. Sections 302 (a) (4), 1202 (a) (4), 1352 (a) (4), and 1382 (a) (4).
Note, "Withdrawals of Public Welfare: The Right to a Prior Hear-
ing," 76 Yale L. Rev. 1234 (1967). See generally, Reich, "Individual
Rights and Social Welfare: The Emerging Legal Issues," 74 Yale L.J.
1245 (1965) ; Reich, "The New Property," 73 Yale L.J. 733 (1964).
Law and the. Grievances of the Poor 47
20. The following examples are illustrative. The New York Department of
Public Welfare discontinued benefits to one woman on the basis of an
erroneous letter from the New York City Board of Education saying
that the recipient was a fulltime employee. The Ohio Welfare Depart-
ment terminated aid for the aged to one woman "at the request of the
recipient," although notified that no such request had been made. In each
case it took a court action to have aid reinstated. 3 Law in Action 8
(May 1968).
There are now lawsuits pending to require that withdrawal hearings
conform to the following due process criteria.
Specific notice of the basis for the proposed action ;
Confrontation and cross-examination of persons giving adverse
information; and
A reasoned decision, based on the record, determining the issues
raised at the hearing.
3 Law in Action 8, 9 (May 1968).
21. See, e.g., Parrish v. Alemeda Civil Service 57 Cal. Rep. 623, 425 P. 2d
223 (1967).
22. New York Post, Apr. 4, 1969, at 22.
23. Standards of undesirability may be extremely vague. In New York City
they cover families deemed: (1) a detriment to the health, safety, or
morals of its neighbors or the community; (2) an adverse influence on
sound family and community life; (3) a source of danger to the peaceful
occupancy of the other tenants; (4) a source of danger or cause of dam-
age to the premises or property of the Authority; or (5) a nuisance.
New York City Housing Authority, Resolution Relating to Termination
of Tenancy, Res. No. 60-8-684, Art. II, Sec. 202 (g) (1960), at 206. See
Comment, "Title VI of the Civil Rights Act of 1964 Implementation
and Impact," 36 Geo. Wash. L. Rev. 824, 997 (1968).
24. The Department of Housing and Urban Development recently ruled that
no tenant be given notice to vacate "without being told by the Local
Authority, in a private conference or other appropriate manner, the
reasons for the eviction, and given an opportunity to make such reply
or explanation as he may wish." Local authorities are to maintain writ-
ten records of evictions from federally assisted projects, including the
specific reason for each eviction. Thorpe v. Housing Authority, 89 S. Ct.
518, (1969).
25. See, e.g., Knox Hill Tenants Council v. Washington (U.S.D.C., D.C.
#22781, 196) on appeal to the United States Court of Appeals for the
District of Columbia, #22781.
26. A study of the New Jersey Civil Rights Division concluded that despite
extensive statutory powers to initiate enforcement proceedings,
it narrowly construed its powers to act at all, devised a series of
procedural steps which operated against vigorous enforcement, and
compromised and settled cases at a rather high rate, with a rela-
tively low level of relief.
Blumrosen, "Antidiscrimination Law in Action in New Jersey: A Law-
Sociology Study," 19 Rutgers L. Rev. 187, 196 (1965); See also Report
of the Governor's Committee to Review New York Laws and Procedures
in the Area of Human Rights, March 1968, at 8.
27. Comment, "Enforcement of Municipal Housing Codes," 78 Harv. L. Rev.
801,807 (1965).
28. "The simple fact is that the vast majority of us, in the comfortable
prosperity of our affluent society, do not approve of the poor . . . [We]
have set up every kind of barrier to exclude or discourage the desper-
ately poor from even [a minimal] level of aid: arbitrary definitions of
eligibility related to age, family relationship (such as the absurd require-
48 Report of the Task Force on Law and Law Enforcement
ment in many states that there be no man in the home), employability,
duration of residence in the state, and every sort of procedural hurdle
and humiliation." E. Wickenden, Administration of Welfare Rights, 2-3,
4, paper presented at the National Conference on Law and Poverty,
Washington, B.C., June 1965.
29. The Moreland Commission Report, supra note 17, at 76, included the
following :
"From my own experience and research," said one witness at our
public hearing, "50-60 percent of a caseworker's time is spent on book-
keeping. I thought I would be able to help people, but I was a book-
keeper." He related an instance in which an elderly couple each getting
Old Age Assistance, and each treated as a separate case moved to a
new neighborhood and the rent went up. To revise the rent allowance
upward, the witness said, he had to fill out and file 30 different pieces of
paper. This paperwork explosion plagues welfare workers everywhere
. . . The files bulge with records in triplicate, quadruplicate and quin-
tuplicate all designed to set forth facts and to substantiate action and
justify reimbursement. Accountability is necessary. But at what point
does filling out forms pass the point of diminishing returns, and become
record keeping for the sake of record keeping? At what point does desk
work become so demanding that social workers have little time to serve
the needy and the dependent?"
30. Unrealistically high caseloads intensify the problem. In 1964 there was
one fully professionally-trained caseworker for every 23,000 relief recipi-
ents. May, The Wasted Americans: Cost of Our Welfare Dilemma 104
(1964). The turnover rate averaged 26% with 40% in many cities. Id.
at 109.
31. See, e.g., Carrier L. Guest, C 29589 (D.C. Dept. of Public Welfare) in
which the hearing examiner made the following finding, accepted by the
Department Head: ". . . the Hearing Officer is of the opinion that the
evidence has established that the public assistance budget standards for
the District of Columbia are not adequate to meet the cost of living for
Claimant's family and the families of others similarly situated."
32. "It seems to me that if one were disposed to blame courts for the present
impasse in which we find ourselves, he could with a good deal more
reason direct his attack not to the Supreme Court of the United States
but to the courts of original criminal jurisdiction in urban centers
throughout the country. These are the courts which meet members of
the disadvantaged and alienated communities, and I think it must be
said that unfortunately these courts have done great damage to the
reputation of the law with these groups." Testimony of Dean Francis
Allen before the Commission.
33. J. Carlin, Lawyers' Ethics (1966), at 85-86.
There is indirect persuasive evidence of the relation between the lower
the court in the judicial hierarchy: (1) the lower the jurisdictional
amount of claims (which means the more likely it will be used by lower-
class persons), (2) the less likely that parties will be represented by
private counsel (reflecting in part the fewer economic resources of
parties whose cases go through inferior tribunals), (3) the more likely
that lawyers who deal with the court will have a low-status clientele
(see Carlin, supra), and (4) the more likely that the court will be proc-
essing cases reflecting problems which occur more in the lower than the
upper classes. Thus, it is among the poor that we find the highest rates
of divorce, separation or desertion (See W. Goode, Family Disorganiza-
tion in Contemporary Social Problems, R. Merton & R. Nisbet eds.
(1961), at 416-28. Mental illness (See B. Berelson & G. Steiner, Human
Behavior: An Inventory of Scientific Findings (1964), at 33. Juvenile
Law and the Grievances of the Poor 49
delinquency (See A. Cohen & J. Short, Jr., Juvenile Delinquency, in
R. Merton & R. Nisbet, 1961), and drunkenness. (See D. Pittman & C.
W. Gordon, Revolving Door, 1958, Ch 2.) At any rate, these problems
are most likely to come to the attention of public officials when they in-
volve the poor. The term "low level" or "inferior" tribunal refers to lo-
cal or state trial courts of limited or special jurisdiction (including the
family, drunk, psychopathic, small claims and juvenile courts) as op-
posed to state trial courts of general jurisdiction and appellate courts.
Court level is usually correlated with the salary and tenure of judges
and their educational background and experience. (See Carlin, supra,
Ch 5.). It is interesting to note that in California, which has a consoli-
dated court system, assignments to those departments in the Superior
Court that correspond to low-level courts in other states (such as ju-
venile or domestic relations) are generally designated as the least desir-
able by judges.
34. The largest increase in the number of filings between 1928 and 1954 was
found in the small claims, domestic relations, juvenile traffic and psycho-
pathic courts. The smallest increase took place with respect to other civil
cases; in fact, there was a 36% decline in the number of these cases
filed in the Superior Court. See J. Holbrook, A Survey of Metropolitan
Trial Courts, Los Angeles Area (1956), at 10, 14.
35. ". . . [A] study of a magistrate's court in a large eastern city said that,
in 13 minutes on the morning after a local newspaper ran an editorial
under the title 'Get Bums Off Streets and Into Prison Cells," 60 persons
were tried and convicted of vagrancy by a single magistrate. In several
cases, a defendant was convicted after the magistrate simply called his
name, looked at him and pronounced sentence usually three months in
the city jail." Wright, supra note 3, at 26.
36. Thus, in a study on mental health hearings conducted in Wisconsin it
was noted:
In one urban court (the court with the largest number of cases)
the only contact between the judge and the patient was in a prelimi-
nary hearing. This hearing was held with such lightening rapidity
(1.6 minutes average) and followed such a standard and unvarying
format that it was obvious that the judge made no attempt to use
the hearing results in arriving at a decision. He asked three ques-
tions uniformly:
How are you feeling?" "How are you being treated?" and "If the
doctors recommend that you stay here a while, would you coop-
erate?"
No matter how the patient responded, the judge immediately signified
that the hearing was over, cutting off some of the patients in the middle
of the sentence. Scheff, "Social Conditions for Rationality," 7 Am.
Behav. Scien. 22 (March 1964).
37. Handler, "The Juvenile Court and the Adversary System: Problems of
Function and Form," 1965 Wise. L. Rev. 32 (1965).
38. Judicial Council of California, 1962 Annual Report 151 (1963).
39. C. Pragter, R. McCloskey, and M. Reinis, The California Small Claims
Court 40, 45, 55, student paper, University of California, 1963, subse-
quently published in condensed form in 52 Calif. L. Rev. 876 (1964).
40. Report of the Attorney General of Pa., supra note 12, at 31. Court per-
sonnel there even had a direct pecuniary interest in the outcome of the
proceedings.
Many constables own and operate their own registered collection
agencies. Other constables simply advertise themselves as being in
the collection business, while a third group of constables function as
collection agents without forming a separate agency or openly
50 Report of the Task Force on Law and Law Enforcement
advertising as such . . . When money is obtained from a debtor,
the constable collects not only a fee for serving process in the case,
but also retains from 25 percent to 50 percent of the amount col-
lected . . .
As a result, constables are engaging in practices designed to
terrify the average citizen and to make it clear to debtors that by
reason of the constable's close association with the magistrate who
will hear the case, any attempt to resist collection is futile. Id. at 27.
41. See Murphy, "B.C. Small Claims Court The Forgotten Court," 34 B.C.
Bar J. (Feb. 1967, pp. 14-15.) (Quote from interview with J. Murphy,
Sept 18, 1968.)
42. See Willging, "Financial Barriers and the Access of Indigents to the
Courts," 57 Georgetown LJ. 253 (1968). 274 et seq. (1968).
43. Judge Miller, U.S. Court of Appeals, speech at 1941 A.B.A. Convention,
cited in 3 Law in Action 10 (May 1968).
44. Koos, The Family and the Law 9 (1949); Brownell, Legal Aid in the
United States (1951) (only 3 out of 5 poor families with legal problems
recognized their need for legal help and only 2 out of 5 legal service).
45. See e.g., Carlin and Howard, "Legal Representation and Class Justice,"
12 UCLA L. Rev. 381 (1965); H. O'Gorman, Lawyers and Matrimonial
Cases 61 (1963).
46. According to a Texas survey, 35 percent of respondents of low socio-
economic status did not know a lawyer in their community, compared
to 18 percent of those of upper- and upper-middle socio-economic status.
J. Belden, The Court and the Community: A Study of Contracts, Com-
munications and Opinions Regarding a Specialized Legal Institution
(1956) (Unpublished manuscript at the University of Chicago Law
School.)
47. "Paraprofessionals in Legal Services Programs: A Feasibility Study,"
University Research Corporation for the Office of Economic Opportunity
(1968), at 6.
48. In 1921, the American Bar Association established a Standing Committee
on Legal Aid Work and in 1922 recommended that "every state and local
bar association ... be encouraged to appoint a [similar] Standing Com-
mittee . . ." Brownell, Legal Aid in the United States (1951), at 151-2.
49. There are now 600 Legal Aid programs in 3100 counties. Brownell
claims that "the chief reason for the bankruptcy rule seems to be the
desire not to lose the goodwill of merchants and other creditors from
whom the societies must seek settlements for their clients." Others have
perhaps been more candid by indicating that what is feared is not
simply loss of goodwill but the loss of Legal Aid funds. Several partici-
pants at the 1948 conference of NALAO observed: "That they encoun-
tered objection to their handling [of] these [bankruptcy] cases from
merchants, doctors, small loan companies and others who contribute
generously to the Community Chest." Sudnow, "Normal Crimes : Socio-
logical Features of the Penal Code in Public Defender Office," 12 Social
Problems 415 (1965). In 1963 local Community Chests provided 53% of
the funds for Legal Aid societies. 1963 Annual Report of National Legal
Aid and Defender Association.
50. 78 Stat. 516 (1964). See Guidelines for Legal Service Programs (Wash-
ington, D.C.: Community Action Program, Office of Economic Oppor-
tunity). See also Cahn & Cahn, "The War on Poverty: A Civilian Per-
spective," 73 Yale LJ. 1317 (1964).
51. Ortique, "Too Little, Too Late," 14 The Catholic Lawyer 158 (Spring
1968).
52. A district court recently ruled the hearing must precede the cutoff. 3
Law In Action 6 (Dec. 1968).
Law and the Grievances of the Poor 51
53. All these cases are reported in 16 Welfare Law Bulletin (March 1969)
and 3 Law in Action 6 (Dec. 1968). See also, Toll and Allison, "Advo-
cates for the Poor," 52 Judicature, The Journal of the American Judi-
cature Society 321 (1969).
54. OEO Study, supra note 47, at 1.
55. Id. at 10.
56. Bellow, "The Extension of Legal Services to the Poor New Approaches
to the Bar's Responsibility," speech given to the Harvard Susquecenten-
nial Celebration 6 (1967).
57. "In Scandinavia, that excellent institution called the Ombudsman assists
the ordinary citizen in seeing that the law is not administered with an
evil eye, or an uneven hand. He also assists the public official by clearing
the air of unfound [sic] charges. In both ways, the Ombudsman helps
safeguard the integrity of equal protection. The Ombudsman or rather
the idea it embodies appropriately adapted to our governmental insti-
tutions, towns, cities, states, and even the Nation could help in the reali-
zation of our ideal of equal treatment of all citizens by government
officials." Statement of Former Justice Goldberg, in Hearing on S. 1195
Before the Subcommittee on Administrative Practice and Procedure of
the Senate Committee on the Judiciary, 90th Cong., 2d Sess., at 5 (1968).
See generally, Davis, "Ombudsmen in America: Officers to Criticize
Administrative Actions," 109 U. Pa. L. Rev. 1057 (1961); Cloward &
Elman, "Poverty, Injustice and the Welfare State: An Ombudsman for
the Poor?" Nation, Feb. 28, 1966, at 230.
58. OEO, Training and Technical Assistance Grants 7-8 (1967) (mimeo-
graphed release) ; interview with Hugh D. Duffy, Chief, Planning & Re-
search, Legal Services Program, OEO, Washington, D.C., Sept. 30, 1968.
Institute for Political Service to Society, Red Tape (1968). See Wash-
ington Post, Oct. 18, 1968, at Bl.
59. See generally, Note, "Tenant Unions: Collective Bargaining and the
Low-Income Tenant." 77 Yale L.J. 1368 (1968). N.Y. Real Prop. Actions
Law, art. 7A (McKinney Supp. 1967). See Rich, "Civil Rights Progress
Out of the Spotlight," 38 Reporter 25 Mar. 7, 1968.
60. See, e.g., Columbia University Project on Social Welfare Laws, the
National Office for the Rights of Indigents.
61. Robb, "HEW Legal Services: Beauty or Beast," 55 A.B.A. J. 346 (1969).
62. Federal courts have always been able to appoint counsel in civil cases.
28 U.S.C. 1915. But they rarely do. In a District of Columbia study 4 out
of 7 assigned counsel in civil cases "declined." The general view is that
courts cannot insist on such services from lawyers. Willging, supra note
42, at 264.
63. Oaks, "Improving the Criminal Justice Act," 55 A.B.A. J. 217 (1969).
Average compensation was $120 for trial court representation and $322
for appellate court.
64. Id. at 220.
65. Many OEO lawyers candidly admit they are reluctant to call in volunteer
lawyers on a one-case basis because "it is easier to do it yourself" than
to answer all their questions.
66. Habermann, "Judicare," 117 Pitt Legal J., March 1969.
67. Kiigis, "Law Firms Could Better Service the Poor," 55 A.B.A. J. 232
(1969).
68. See "Elite Law Firm Opens Office in Ghetto," Washington Post, March
20, 1969, at A19.
69. Clark, "The Minority Lawyer: Link to the Ghetto," 55 A.B.A. J. 61, 64
(1969).
CHAPTER 4
GOVERNMENT AND THE
"FORGOTTEN MAN"*
During the last months before each Presidential election, the
attention of the movers and the shakers of .U.S. affairs turns to
the "Forgotten Man," that great mainstream American who by
the force of his ballot elects the man who shall lead the Republic.
At the climax of the process, the chosen leader goes on to try
to fashion a "Return to Normalcy" or a "New Deal," a "New
Frontier" or a "Great Society." The Forgotten Man goes back
to work, not to be formally consulted again until the time comes
to ratify the President's stewardship or to replace him with an-
other.
The Forgotten Man often feels that even at election time he
does not have a choice of whom he wants as President, but a se-
lection of two or three candidates that the kingmakers of rival
power groups have offered him. In part, this explains why the
"Forgotten Man" often does not go to the polls. It also explains
the woman next door who never votes "because it just encourages
them" : she is the Forgotten Man's wife.
Between elections, the Forgotten Man feels he has even less
influence over what the President and the lesser leaders do or
do not do. His voice is heard in the councils of the mighty only as
translated by pundits who assert they speak for him, or by
pollsters who claim to have consulted a controlled sample of
him from which it is possible to generalize. In truth, politicians
from the White House to the Courthouse do listen to the pundits
and read the polls, and they do pay attention. When the message
is writ large enough, they sometimes take direct and drastic
action, as in the case of President Johnson's abrupt retirement.
But situations are seldom that clear-cut. That is the big prob-
lem in dealing with the Forgotten Man : there are so many of him,
* This chapter is based largely on a paper contributed by Arthur B.
Shostak, Associate Professor, Department of Social Sciences, Drexel Institute
of Technology, with additional materials supplied by William Edward Callis.
53
54 Report of the Task Force on Law and Law Enforcement
each with his own attitudes and anxieties, that the composite
which constitutes him can be difficult to determine.
WHO IS THE FORGOTTEN MAN?
The Forgotten Man is the man in the middle, in the majority,
the ordinary guy for whom exceptions are not made. He is nei-
ther so poor that the government thinks it must try to rescue
him, nor so rich that he can exercise independent power. He is un-
organized, so that he is (and, more important, feels he is) alone
in his dealings with government, which aside from his rather
remote vote, generally consists of IBM cards and form letters
and more-or-less indifferent clerks who cite regulations as to why
this must be done in exactly that way or perhaps, for no good
reason, cannot be done at all. The clerks, of course, get theirs
when they have to deal with some other government agency.
Generalities about government being of, for, and by the people
do not comfort the Forgotten Man when he sees the same govern-
ment that socked him with a severe penalty for late payment of
part of his $2,403.16 income tax, now forgive a million-dollar
defaulter for 100 on the dollar (and issue a press release bragging
about it) , or when he sees his taxes apparently going to support
minorities who rant and riot in protest over his more privileged
way of life.
The Forgotten Man, patronized by his so-called friends as
"the little guy" and sneered at by his so-called superiors as "the
great mindless mass," is in fact the source of stability and con-
tinuity in American life. He does his job, pays his taxes, obeys
most of the laws, loves his country, gets along with his neighbors,
cares for his family, goes to war when he must, stores up such
treasure as he can, usually goes to church, and takes what plea-
sure can be found in this land of plenty which does not seem
quite plentiful enough for him in a world of want. Running hard
to hold his place or maybe to get a little ahead, he is warned by
prophets on every hand that his fragile world is in danger of
destruction from the right by militarism, from the left by com-
munism, and from the center by complacency the sin so often
and unthinkingly charged against those who lead "lives of quiet
desperation."
It isn't that the Forgotten Man isn't worried; it's just that,
according to exhaustive polls, if you talk to ten of him, you will
find that three don't feel they have any say in what the govern-
ment does, four don't think politicians care what they think, and
seven often find they just don't understand what's going on.
The following tables are from the Violence Commission's sur-
vey of October, 1968.
Government and the "Forgotten Man'*
55
Degree of Endorsement of Political Efficacy Items
[In percent]
Item
Overall
White Nonwhite
People like me don't have any say about
what the Government does
35
35
41
Voting is the only way that people like
me can have any say about how the
Government runs things
54
51
73
I don't think public officials care much
what people like me think
43
43
51
Those with lower income and lower education feel even less
politically effective than those who are better off in these respects.
Agreement on Political Efficacy Items for Income and
Educational Levels
[In percent]
Income
Education
10,000
Some
High
5,000-
and
8th
High
school
5,000
9,999
over
grade
school
graduate College
People don't
have any say
49
33
26
49
43
33 22
Voting is the
only way _
65
55
43
72
66
53 34
Public officials
don't care _
57
42
31
60
53
42 25
The Forgotten Man identifies as an American who simultane-
ously is certain and confused about the meaning of current
events. He has confidence in ("This is a great country") and
yet is quite concerned about the quality of public servants and
political affairs. He becomes, therefore, the natural prey of the
political extremists, especially of the populists and the far right,
who offer simple answers to mind-boggling questions.
These self-contradictory ways explain the Forgotten Man's
volatile character and his erratic impact on the American scene.
Confused, for example, about the justice in civil rights cam-
paigns, he is almost certain that the social and racial status quo
cannot or should not be changed quickly. Confident his govern-
ment is worth the ultimate defense in a contemporary over-
seas war, he is still suspicious of that government. 1 Law-
respecting, he is open nevertheless to the beliefs of extremists
bent on rewriting the laws to their own purpose. Overall, the
single most widespread concern of the Forgotten Man is over the
"decay of values" as evidenced by street crime, race militancy,
college protestors, Mafia inroads, political scandals, bureaucratic
56 Report of the Task Force on Law and Law Enforcement
ineptitude, and the like, but going beyond this decay to include
everything that suggests people no longer act in accordance with
decent values and right reason. The very virtues he holds to are,
in his eyes, conspicuously absent from society as a whole and
herein is the source of his discontent. 2
The Forgotten Man does not perceive himself as a racial bigot,
a witch-hunting super-patriot, a subversive, or a vigilante.
Rather, he thinks of himself as "very much open-minded." As the
receptive potential audience for racists, super-patriots, and ultra-
vigilantes, the Forgotten Man can bolster or detract from the
significance of their violence-supporting activities. With his
massive numbers, the Forgotten Man is the key of their power.
His decision about their appeal is far more important than that
of the scanty number of erratic "true believers" on the far left
or far right who receive far more exposure in the mass media.
PROFILE OF THE FORGOTTEN MAN
Much of the confusion in public and academic discussion in
this matter reflects mutually-contradictory identifications of the
Forgotten Man as a backwoods or "white ghetto" Wallaceite, or
as a reluctant "old liberal" Democratic backer of candidate
Humphrey. Some represent the Forgotten Man as lacking confi-
dence in all levels of government, or especially in federal levels
of government, or in all forms of authority, extending beyond
the state to include labor and business institutions.
The Forgotten Man is best understood as essentially four differ-
ent types of men. All share certain attitudes in common, but differ
in their actions in a clearly identifiable way. The Forgotten Man's
hang-ups include resentment, envy, disappointment, and uncer-
tainty*
Resentment ties to a perception of a loss of status and power
to less well-off men (especially black Americans). In his eyes
certain out-groups (or "minorities") seem to be sharply closing
the social distance that previously had them "castes away."
Envy, associated with resentment, ties to the notion that the
"power-grabbing" out-groups have potency and actual success
in climbing the social ladder.
Disappointment draws on the notion that elements of govern-
ment are not only not neutral, but have "gone over" to support
the outgroup power-grabbers, and that all large organizations,
whether government, labor, or business, "have it in for the
little guy" the plain citizen who is voiceless, powerless, and
friendless.
Uncertainty ties to a commonplace historic preoccupation with
political eccentricity and violence, that ours is a political record
Government and the "Forgotten Man" 57
of innumerable splinter parties, and of a bloody political history
(e.g., Shay's Rebellion, the Civil War Draft Riots, the presidential
assassinations, and the like) . If anything worries the Forgotten
Man more than where the government is heading, it is the pos-
sibility that it all may come crashing down.
The Forgotten Man may take his own beliefs quite seriously,
yet while holding them, he may entertain considerable doubts
about them. He may be willing, even anxious to act on them, or he
may be unwilling, even quite reluctant to take any overt action
to support them.
At one extreme, a very small number of "hard core" Ameri-
cans unreservedly endorse the Forgotten Man's resentment, envy,
disappointment, and uncertainty, and they seek ways to act on
these beliefs. Many "prefer the primer to the history text, and
the quick-action revolver to both." In contributing to what Rich-
ard Hofstadter has identified as the "paranoid style" in our
politics, the hard core nativists and segregationists supply
"heated exaggeration, suspiciousness, and conspiratorial fan-
tasy." 4
At the other extreme from the tiny minority of hard core types
is the vast majority of "quiet" types. Drawn from lower-middle-
class ranks of respectable Americans, they want a return to the
simple life, the "good old days" of American mythology. They
avoid taking much action. Typical here are many of the suburban
supporters of President Nixon, especially those who left the
Independent or Democratic ranks to vote Republican in 1968 for
the first time.
The next largest category, that of "inactive," is the Forgotten
Man who takes his own self -identifying attitudes quite seriously,
but cannot bring himself to act on his beliefs. Typical here are the
millions of blue-collar trade-unionists who only deserted the
Wallace candidacy in the closing days and hours of the campaign
finally to vote for Hubert Humphrey and the traditional straight-
Democratic ticket.
The fourth category, on the other hand, involves the "unmoti-
vated," men who behave more earnestly than they believe.
Typical are men who feel themselves compelled by the attitudes
or urging of workmates, neighbors, or relatives to engage in ra-
cial discrimination or protest voting in a way which leaves them
vaguely convinced that someone else is making decisions for
them. 5
The four types Hard Core, Quiet, Inactive, Unmotivated
can become volatile in the extreme. Large numbers of these
people frequently shift among the four categories, making it
difficult to do more than loosely rank the blocs from large to small
(quiet, inactive, unmotivated, hard core) and to stress how major
political developments (riots, assassinations, close election out-
58 Report of the Task Force on Law and Law Enforcement
comes, etc.) can lead to major shifts in the size, rank, and char-
acter of the four constituencies.
All four types but especially the Inactive category include
women. Zealous in defense of their children's head start over
others, the use of secular schools to reinforce sacred pieties (as
with Bible-reading) , and the reduction of the spirit-breaking
tax load, millions of women form a strong force in perpetuating
the Forgotten Man's attitudes. Examples range from the shriek-
ing demonstrators outside Little Rock High School in 1956 to
the millions of fearful, repressive "Law and Order" admirers of
candidates who espouse greater use of the death penalty.
All four types but especially the unmotivated draw on old-
sters for membership. Often deliberate non-voters, and com-
monly nostalgic admirers of a better time long since passed,
many old-timers experience all four Forgotten Man feelings of
resentment, envy, disappointment, and uncertainty. Strong in
defense of life-honored guidelines, like "folks should know their
place," in defense of the justice of insisting others should also
"make it the hard way," and in defense of massive govern-
ment economies (in all but old-age benefits), millions of old-
sters support the attitudes held by the Forgotten Man as a way
of protesting against the human costs of growing old in
America.
Unlike the included women and oldsters, those excluded from
the ranks of the Forgotten Man are the very well off and the
very poor. The former are not especially concerned with losing
status and power to others, while the latter are conscious in
recent years of securing small increments of status and power.
Neither qualifies as "forgotten." While individuals in both
classes may share specific attitudes and goals with the Forgotten
Man, the necessary four-part complex of attitudes is seldom em-
braced as a whole by the bulk of the class members.
By this process of definition by four attitude-behavior types,
and of exclusion by two social classes, we have a provocative
residual understanding of the "Forgotten Man." Capable of a
wide range of attitude and behavior, the Forgotten Man proves
on analysis to be at least four kinds of men. Commonly drawn
from median-income earning ($6,000-$12,000) blue-collar and
lower-echelon white-collar workers, with median educational
achievement (high school or less), and both suburban and urban
residence, the Forgotten Man begins to look like an American
Everyman.
PORTRAITS OF THE FORGOTTEN MAN
With a breath of individuality to give life to the foursided
Forgotten Man, here are some singular portraits of the Hard
Core, the Quiet, the Inactive, and the Unmotivated:
Government and the "Forgotten Man" 59
1. Hard Core
Mrs. Gaboon is a thirtyish lady who would be very at-
tractive were it not for the fact that her lips are nearly al-
ways compressed in a thin line. She was alerted to the com-
munist conspiracy by the way the Virginia Highway Depart-
ment acted when they paved the road in front of her home in
Roanoke. Mrs. Cahoon was born and raised in Iowa and
moved to Virginia with her husband, a Marine sergeant she
met at a dance sponsored by the Grange to raise money for
a memorial to the town's Vietnam dead. When they built
their home it was on a dirt road, and they liked it that way.
But more people built nearby, and finally they petitioned
the State to pave it, over the objections of the Cahoons and
one or two others, who also didn't want high-speed traffic
endangering their children.
When the paving project neared her home, a man appeared
at her door to inform her that the arbor vitae hedge along
the front of their lawn would have to be dug up and moved
because it was in the State's right-of-way. He asked her to
show him where she would like to have the bushes re-
planted by his men. Now Mrs. Cahoon knew that their
property line extended to the center of the road, and she
was damned if anybody was going to touch her arbor vitae.
There was much showing of plans and explanation of high-
way easement, but Mrs. Cahoon would not be moved. Some
days passed and a morning came when the highway district
superintendent told his foreman to have the bushes dug up,
taking care to keep plenty of soil around the roots, and place
them gently on the Cahoon property outside the right-of-way.
Mrs. Cahoon was washing dishes when she looked out the
widow and saw what they were doing and came out the
door wildcat fashion. She scratched the foreman. He called
the police. They told her about the law and she told them to
go to hell. They took her to jail. The judge scolded her and
put her under a peace bond, "after they had locked me up
and this big fat woman with dirty fingernails (the jail
matron) made me take off all my clothes and she poked me
all over and I mean all over, I can't tell you any more than
that, and the deputy said some dirty things to me you
wouldn't believe. They treated me like a criminal, like I was
a nigger." And the arbor vitae died.
Some years have passed since then and Mrs. Cahoon, who
had had no previous experience with politics, has become
involved in the Wallace movement. She is basically a shy
person, but her new zeal is such that she finds herself able
to knock on doors in neighborhoods where she knows Wallace
60 Report of the Task Force on Law and Law Enforcement
people are not openly acceptable and to pass out literature
on the street. She is a little impatient with Wallace sometimes
("I wish he'd stop talking about running over one of those
freaks and go ahead and do it") but she believes the move-
ment will prevail. "We got 18 million votes, and we're going
to win next time," she said. "The people are waking up.
They're not going to stand for being pushed around by a lot
of reds and fairies and niggers. We've seen what happens
when the Federal Government sets up the niggers to run
everything. In that riot in Washington the nigger police
encouraging their 'soul brothers' [she says the word as
though it had quotes around it] and the white police couldn't
do nothing about it because the nigger mayor wouldn't let
them. I know plenty of people who saw it, right out in the
street."
She understands now why she was treated so badly in
the squabble over the road. "If I was a police officer and had
my hands tied so I couldn't arrest anybody even if I saw
them rob a man and they get turned loose next day anyway,
I'd feel mean too."
Mrs. Cahoon confidently expects to see the Russians take
over this country if Wallace doesn't get in. "They have so
many people paying niggers and college students to agitate
and start riots it takes two whole floors of the U.N. building
just to hold them," she said.
Against that day her husband has outfitted the house with
semi-automatic surplus military arms and what appears to
be about 10,000 rounds of ammunition. Her husband has
taught her how to operate them, and she can field strip an
M-l carbine in the twinkling of an eye.
2. Quiet
Vitale is a 55-year-old mother of two children, one an
attorney and the other a schoolteacher. Separated from
her husband when the children were still infants, she went
to work as a laborer in a New Jersey textile factory to sup-
port herself and her children. A second generation American
of Italian descent, she had been forced to quit school at the
age of 16 to help support her own parents and 7 brothers and
sisters during the depression, earning more than her father
was making.
Still working in the textile factory, she has long been a
member of a textile workers union. She has never crossed a
strike line even though she describes her union leaders as
corrupt and lazy. "They drive around in Cadillacs while I
work my hands to the bone. They're in cahoots with the
bosses anyway. They get their payoffs for not starting any
Government and the "Forgotten Man" 61
trouble and then they raise our dues." But Jimmy Hoffa was
all right. "At least he got the men good wages."
Corruption doesn't anger her too much, however, for she
realizes it is just part of a broader conspiracy. "It's the
politicians who cause all the trouble. They ought to throw
them all in jail."
One day in 1960 she read in the newspaper about a sit-in
at a segregated southern restaurant, and that stunned her.
She hadn't realized that Negroes in the south were treated
that way. She liked John F. Kennedy, as she had liked Frank-
lin D. Roosevelt, because he was for the "little people. The
Republicans are just for the rich people." After his election,
she had listened attentively to each of his television addresses
as she had listened to Roosevelt's fireside chats. The assas-
sination shocked and grieved her. A strong woman who had
not cried for years, she wept bitterly.
She did not like Lyndon Johnson. Things were beginning
to happen in the country that she could not understand and
she expected the President to explain them to her. She tried
to listen to his televised speeches, but they made no sense.
"Just a lot of bullshit, if you'll excuse my language."
The riots distressed her. "What they ought to do is shoot
them all. That will keep them off the streets." On top of
that, her factory was hiring blacks that "don't know their ass
from a hole in the ground." One black man in particular
infuriated her. "He's with the NAACP, so they can't fire
him or else they would be accused of 'discrimination' even
though he doesn't do a damn bit of work. If I did what he
does I'd be out on the street. The damn nigger. And the
union is behind it all. What do they care. They get more dues
to feed their faces."
The war on poverty did not make any sense to her. She
made $15 dollars a week during the depression, worked hard
all her life, put her children through college, and still man-
aged to put some money aside for a rainy day. Now her
children could take care of her in her old age and she could
babysit for them. That was the way it was supposed to be.
Her father never had to accept any welfare, even during the
worst of the depression. "Nobody ever gave me anything.
I worked for every penny I have. The problem is those damn
niggers just don't want to work. They like being on welfare.
All they do is spend it on liquor and color television any-
way. They have babies just so they can get more welfare."
It was no surprise to her when the local newspaper un-
covered a welfare scandal. "Those damn politicians are all
crooks. They bring the colored people up from the south by
promising them a lot of welfare. That's the way they get
62 Report of the Task Force on Law and Law Enforcement
their votes and stay in office. I know. Everybody at the shop
agrees."
She did not want to have anything to do with Goldwater
because "if he got in, he'd get us into a war." War wasn't
any good. "They just make rich people richer. Rich people
like wars. More business for them." One of her brothers and
many of her friends had been killed during World War II and
she did not want her son to go to Vietnam. She thought
about it a lot, then went to see her state Senator, whose
family had known her family from the "old neighborhood,"
to see what he could do. "The rich kids don't go to Vietnam.
Their parents get them out of it. It's not what you know,
it's who you know. Connections that's everything. Let them
niggers fight. They want to fight so much, ship them all to
Vietnam. And all those college students who want to fight,
taking over buildings and things. That will get them off the
streets."
She did not get to see the Senator. "He's a busy man. But
his secretary was nice. She took down all the information
and said 'footsie,' that's what we used to call him in the
neighborhood, would see what he could do." Neighborhood
ties were never tested, however. Her son enlisted soon there-
after. "I guess it's better this way. The men have to fight.
That's the way it always was, always will be."
She liked Robert Kennedy, though not as much as John.
She would have voted for him had he not been assassinated.
After the conventions, she turned to Wallace. "Humphrey's
just a tool for Johnson. Nixon is still a Republican." She
voiced her choice to her friends and relatives loudly. In the
end, she voted for Nixon. "Wallace didn't have a chance. If
I voted for him I would just be throwing my vote away.
Nixon was the next best thing, even though he is a Republi-
can."
She argues politics a lot with her children. Her son is a
liberal, and although she can't understand how a bright boy
like himself can be so stupid sometimes, he does raise points
she hadn't thought about before.
But she cannot understand what he sees in the youth
movement. "They ought to beat them over the head with their
clubs. That's the way they did it when I was young. You
never caught us talking filthy to policemen. Daley knew what
he was doing."
But she has no great love for policemen either. "They're
just like the rest of them. They're in on all the deals with
the politicians. I see them, sitting and drinking coffee all
day in diners. My house was robbed and they didn't know
enough to take fingerprints. I showed them a greasy finger-
Government and the "Forgotten Man" 63
print and, you know, they never took it. The stupids!" She
thinks they are mostly bullies, anyway. "John Valone is a
cop. We went to grammar school together. He used to push
the little kids around then, and he still does the same thing
now. He hasn't changed a bit. Given them a badge and a club
and all of a sudden they're big deals."
She liked Ted Kennedy, and Julian Bond is a "pretty nice
young man," but somebody had better "damn well listen to
Wallace. He's the only one who makes any sense."
3. Inactive
Wilson is a 48-year-old white native of West Virginia who
except for service in Europe in World War II (Bronze Star
and Purple Heart) has lived all his life within 20 miles of
Charleston, W. Va. He is of Anglo-Saxon (early mountain
pioneer) stock, and is a former coal miner and son and
grandson of coal miners. Since the war he has worked as a
carpenter because when he was discharged he discovered
that the mine where he used to work had been bought and
closed down by a large steel corporation (as part of a pro-
gram to acquire reserves of coking coal for future needs).
"The Government promised we'd get our old jobs back when
we came home," he said. "I know for a fact they tried to
keep veterans out of jobs so we'd have to go on the welfare.
That way we'd have to do what the Government said or
starve, because they'd cut a man off like that if he didn't do
what he's told."
Wilson does not distinguish among local, State and Federal
Government agencies and officials, feeling that they all "set
their hand against the little man." The only difference
among them, he said, "is they start off with a County office,
and they learn how to steal. When they get pretty good they
get a State job; and the ones that steal the best, they go to
Washington." He says they steal better than half of what he
makes every year Wilson is a very good carpenter and
gets steady work that brings in between $8000 and $10,000
a year in indirect and direct taxes and "the way they keep
prices high to soak up any loose money they might have
missed.
"They" are not just Government officials but big business
as well. Possessed of but a seventh-grade education, Wilson
doesn't use terms such as "the military-industrial complex,"
but he talks of the Government "taking all our tax money
and giving it to the big companies to spend on crazy things
like rockets to the moon. They land one on the moon and find
out it's made of dirt. So now they got to send a man up there
with a shovel so he can bring a pail of it back. If they want
64 Report of the Task Force on Law and Law Enforcement
dirt, I got a whole mountain of it in the back part of my
place, and I wouldn't charge them nothing like what they pay
them rocket boys. I got to work all my life so they can take
my money and throw it at the moon."
Wilson is a "lay minister" of an unaffiliated fundamental-
ist Protestant church (the "chief preacher" is self -ordained)
and an effective public speaker. He has for some years been
active in the Federal anti-poverty program, principally as a
recruiter of young men who are unemployed or under-
employed for the Job Corps or the local community action
program. While he's at it, he manages "to slip in a word or
two about the love of God," and has significantly increased
the number of young man attending his church. He has no
difficulty reconciling his enthusiasm for the poverty program
with his distrust of all Government: "They just making
suckers out of us, trying to keep the people quiet. But while
the money's floating around we try to get a piece of it. It
helps the youngsters some."
Wilson is pessimistic and cynical about the future of
his country, believing that the Government is not of, for,
or by the people and not likely to become so. His solution?
"Revolution," he says, in a shockingly quiet and offhand way.
"Them boys is dug in deep, and they ain't going to let go.
We gonna have to drag a lot of them out and shoot them."
It should be emphasized here that Wilson is a quiet, court-
eous, peaceful man, deeply religious, a more than ordinarily-
devoted husband (his wife is a chronic invalid) and father of
three children in their late teens who are all married and
have moved to Chicago. He lives in a rambling, much-added-
to cabin that he keeps in good repair. It is surrounded on all
sides by lovingly-tended flowers which he has planted "be-
cause they are nice for the old woman to look out upon."
He believes his attitude towards Government is shared by
most of his peers and thinks that the recent emphasis on
firearms control is the Government's response to the revolu-
tionary threat. "They're scared and they're trying to get
our guns away." His attitude does not seem to have any tint
of racism ; his populism is pure and embraces those he calls
without embarassment or overemphasis "our black
brothers." He believes the FBI killed King and both Ken-
nedys "because they were stirring people up."
4. Unmotivated
Cummings is a cop that's the word he uses and has
been one for 30 years, first in Hampton, Va., and now in
Norfolk. Although he is clearly of average or better intelli-
gence, he has remained a patrolman because he cannot pass
Government and the "Forgotten Man" 65
the written test upon which promotion partly depends. He
has an unblemished service record and has been cited several
times for outstanding performance, but put him at a desk
with a pencil in his hand and he freezes up sweats up,
rather and forgets "every damn thing I ever knew." Once
they gave him the test orally and he gave every answer cor-
rectly, but the requirement that he write an essay on some
aspect of police work could not be waived. "I like working
the street anyway," he says.
He can't work the street any more. The department had
to pull him off because he cannot cope with the investigation
and arrest procedures required by Supreme Court rulings
over the past several years. "I've spent all my life learning
how to be a cop," he says. "If they'd told me I was going
to have to be a judge and lawyer too, I'd have been a
mechanic like my oF Daddy." The guidelines set down in
Escobedo, Miranda, etc., may not seem very complicated. But
Cummings, like many law enforcement officers, finds them
strange and intimidating. "You know," his sergeant said,
"it's a funny thing, but he didn't have any trouble until we
had a seminar to explain some of the new rules. They aren't
very different from old department policies anyway, but
Cummings went right out and blew one of our biggest vice
busts (arrests) in years. We told him to take one of the guys
in and book him and he takes the guy to his (the defendant's)
girl friend's house and keeps him there for half the night,
trying to sequeeze information out of him and looking for
narcotics."
"The Supreme Court says once we take a suspect in we
can't talk to him, so I figured I'd take him somewhere else
and talk to him first," Cummings said. He wasn't officially
reprimanded, but after ruining or complicating several suc-
ceeding cases, he was assigned to station duty. Which means
paperwork. Which he says he can't do. He's going to retire,
and he's bitter.
"Police work used to be something a man could be proud
to do," he says. "Now cop is a dirty name. You give a nigro
(he seems to be halfway between "nigra" and "Negro,"
pronunciation-wise) a parking ticket and he falls down on
the sidewalk and starts hollerin' police brutality, and they
have a riot. You see a guy snatch a purse and you got to
recite the Declaration of Independence at him while you're
chasing him. You can't shoot him so you got to hope he'll
start laughing and lose his wind. And then if you catch him
he'll jump up and down and say, 'I'm guilty! I'm guilty!'
and that means you got to let him go if he confesses before
you can get a gag on him. You pull a guy in for stealing
66 Report of the Task Force on Law and Law Enforcement
a quarter and the City buys him a hundred dollar lawyer to
convince the judge to let him go. Pretty soon it'll be a Fed-
eral offense to arrest a murderer."
Cummings can and will go on in this vein for hours, but
somehow it isn't convincing. It seems likely that Cummings
has not been able to adjust to other facets of his work that
have changed in recent years. The department has a substan-
tial race relations program going, and conducts workshops
designed to alert the men to their delicate role in society.
It is a far cry from the "run 'em off or run 'em in" days,
and Cummings does not seem to be a man who is given to
introspection and situation ethics. He's not interested in
trying to see himself through a black man's eyes the better
to understand how to avoid a confrontation. Cummings
thinks people who go around confronting cops ought to go to
jail for disturbing his peace.
ATTITUDES OF THE FORGOTTEN MAN:
HISTORICAL SOURCES
Why does the Forgotten Man believe as he does? What combi-
nation of common elements from the nation's recent history
especially explain the prevalence of resentment, envy, disappoint-
ment and uncertainty? Part of the answer lies in the recent
history of this joint blue-and-white collar bloc. Even after making
allowances for the wide age span involved, the largest number
were born in the late 1920's or early 1930's. Their life histories
ever since have encouraged the volatile political uneasiness that is
their trademark.
The 1920's, for example, did not see blue-collar and lower-
echelon white-collar workers sharing in the nation's paper-
prosperity. Instead, the "Roaring Twenties" meant regional
poverty, long-term unemployment, and inadequate relief for
millions. Protective labor legislation was minimal. Women and
children commonly substituted for working men. And employers
used force or company unions to defeat the near-beaten trade
unions. This interplay between the illusion of gay prosperity for
all and the grim reality for many remains a critical key to under-
standing the entire decade. Millions of Forgotten Men began life
at a time when resentment, envy, disappointment, and political
uncertainty were warranted.
What followed has been characterized as having packed a
"bigger wallop than anything else that happened to America
between the Civil War and the Atomic Bomb." 7 The Great Depres-
sion of the 1930's left 34 million Americans scarred by unemploy-
ment; one in five workers was unemployed or underemployed,
and lived with a "dull misery in the bones." The present day
Government and the "Forgotten Man" 67
Forgotten Man (or his father) entered the 1930's confident that
his uneven luck in the previous decades would change for the
better, and the social order would soon provide jobs. But the
1930's were worse. With dreams shattered, skills gone rusty, and
children undereducated and unlikely therefore to achieve much
more than their fathers, the little man suffered much.
Many Americans left the decade of the Great Depression im-
pressed as never before with the built-in deficiencies of society
(including the intricate connections that explained how a collapse
in Wall Street speculation on paper margin could close real fac-
tories in 48 states and sponsor the human starvation of millions).
Many left the decade shaken by the new heights reached in class
consciousness and class warfare (". . . there were no neutrals
... [it was] a landscape blighted more than anything else by the
absence of pity and mercy") . 8 Millions of men learned at the time
to doubt their once characteristic faith in the Natural Order and
in the Horatio Alger myth of individual success.
In an unprecedented way the victims of the Depression slowly
and steadily came to place their reliance on the mechanism of
government, as they enthusiastically came to place their trust in
the modified welfare capitalism of the New Deal. Many also
turned to the new giant countervailing power represented by the
AFL and CIO labor organizations. By the decade's end, however,
recessions in the late 1930's and a stalemate in mass organizing
union campaigns made plain a serious loss of influence and
momentum by both Big Government and Big Labor. The little
man of the period understandably prolonged his new flirtation
with political demagogues (Long, Bilbo, Talmadge, and others),
arch-conservatives (Father Coughlin, Gerold K. Smith) , vigilante
groups (Detroit's Purple Shirts, the Knights of the White Cami-
lia, the Klan), and political illegalities (such as factory sit-ins).
Cleary the Forgotten Man of today was especially influenced by
the Great Depression : "probably nobody can understand Ameri-
ca, or hence himself, if he does not understand the Great
Depression." 9
The 1940's, much like the Thirties, saw the Forgotten Man
oscillate between hope and fear, self-confidence and bitter envy,
and early respect for, but later suspicion of government. The
economic bonanza that war work and wartime prosperity rep-
resented stirred new hopes that the economy was finally back
in hand. The extraordinary production records stirred new
pride and confidence in self, even as recognition of the con-
tribution of government control mechanisms (price ceilings, the
directed location of war plants in depressed areas, and the "en-
couragement" of union efforts) led many to a new regard for
Government's positive potential.
In a very special way the Forgotten Man had never had it
68 Report of the Task Force on Law and Law Enforcement
so good, and remains even today nostalgic and envious of World
War II days. Cost-plus contracts enabled employers to pay hand-
somely, and accumulated War Bond savings gave millions of
Depression alumni their first real taste of economic security and
prosperity. The terrible plight of poor Black Americans was
temporarily relieved by unprecedented defense work, thus re-
lieving the conscience of White America even as the abundance
of available jobs limited any sense of racial job competition.
Above all, work took on the ethos of a crusade: no personal
sacrifice was denied if it might serve "our boys over there." The
Forgotten Man drew together with others in a way that many
even now remember longingly. 10
With the War's end in 1945, however, new fears spread con-
cerning a resumption of the Great Depression. While employ-
ment and consumption initially stayed high, earnings fell as
employers reduced overtime. The Federal Government, despite
warnings and controversy, lifted price and rent controls. The
economy faltered, consumer demand sagged, and production con-
tracted. By 1949, much as in 1939, unemployment was at its
highest level for the decade.
Throughout the late 1940s the Forgotten Man reacted with
the violence characteristic of many: labor strife peaked in the
1948-50 period, and industrial strikes set lasting records for
duration and bitterness. Also, labor union "civil war" saw the
CIO in 1949 and 1950 expel eleven international unions on
grounds of communist domination. Fathers and sons fought and
much violence accompanied new internecine "dual union" strug-
gles.
In a fashion never since forgotten by the Forgotten Man, the
Federal Government exacerbated problems by responding to
the times with a weak program. A Full-Employment Act was
passed in 1946, but it had limited effect. The same held true
of widely-heralded federal home-building legislation. As if a
display of false promise and impotence were not enough, the
Government's Taft Hartley Act in 1947 revived much of the class
warfare rhetoric of the 1930's.
Again, as in the early 1940's, things were set right in the
early 1950's by the new wartime efforts. The Korean War
initiated an economic boom that has continued with little inter-
ruption to date. Unemployment, however, remained high through-
out the 1950's and early 1960's, rarely dipping below 5 percent.
Furthermore, recovery from both of the recessions in 1958 and
1961 left the country with a higher rate of unemployment than
had each preceeding recovery. While the employment picture has
improved considerably, it remains nevertheless both uneven and
unreliable (anxieties run high over the million jobs directly linked
to the Vietnam War effort) .
Government and the "Forgotten Man" 69
Inflation also proceeds in its own merciless, and seemingly
uncontrollable way. In 1967, for example, the Consumer Price
Index recorded its second largest climb since 1951, and spendable
earnings of workers reached their lowest level since 1964.
Throughout 1968 and on into 1969 the Index continued the con-
secutive monthly increases begun back in 1966. Overall paycheck
purchasing power has shrunk regularly since 1965, the erosion of
purchasing power becoming almost a fixed part of the American
scene or so the Forgotten Man feels.
This, of course, stresses only the important economic com-
ponent of majority Man's recent history. 11 Two other factors,
also important sources of beliefs and memories, warrant men-
tion : political developments and social changes.
Over the past 40 years the Forgotten Man appears to have
been deeply influenced by four particular political developments,
two that were appreciated, and two that were not. Especially
well thought of are the Eisenhower years and to a lesser extent,
the Goldwater candidacy, the first for its tone of calm and
moderation, the second for its stand in favor of established ways
and official pieties. He cherishes both political developments for
their suggestion that law and order can be secured in the land,
that many of the old ways remain best, and that America's
moral health is redeemable.
Relatively unpopular with the Forgotten Man are two political
devlopments related to the Under-Class. The first encompasses
the last fifteen years of civil rights legislation, while the second
focuses on the past five years of anti-poverty programs. He
feels that the anti-poverty aid goes for the most part to those
who do not deserve it; that it demoralizes and harms; that it
discriminates unfairly and imposes an almost unbearable tax
on those who work ; and that it obviously does not succeed. Not
even the recent sidetracking of the race integration effort and
the substitution of "hunger" for "poverty" as a prime govern-
mental concern relieves the resentment, envy, and disappoint-
ment generated.
The past 40 years have also witnessed a relevant set of social
developments. Most important among these are an erosion in
the authoritarian and partriarchal position of the male family
head, a growing dissatisfaction by educated or "enlightened" fe-
males with their prime confinement to housewifery and child-
rearing, and a rebelliousness and rootlessness among both young
males and females that seem to the Forgotten Man to go beyond
anything he can remember or understand. It is as if, having lost
his self-esteem and authority with his indirect failure as bread-
winner in the 1930's, the male household head has never re-
couped. Never-ending social change swirls around his head,
leaving him dizzy, frightened, and not a little furious.
70 Report of the Task Force on Law and Law Enforcement
Looking back over forty years of history since the 1920's, then,
one can understand more easily what shapes the beliefs and atti-
tudes of this group of people : resentment against the betrayal
of aspirations by the economy, the State Department, the Su-
preme Court, and the like ; envy aimed at the Under-Class, with
its allegedly disproportionate gains; disappointment over the
Government's failure to take hold and give direction and worth
to American life (e.g., to curb inflation, root out dissidents, re-
store respect for the man of the family, etc.) ; and uncertainty
thereby leaving the Forgotten Man the political maneuverability
he craves (more in rhetoric than reality) to make a political
impact on the nation that will finally have others sit up and
take notice.
ATTITUDES OF THE FORGOTTEN MAN:
PERSONAL SOURCES
Four aspects of his personal life are important for the For-
gotten Man in his relationship with the institutions of govern-
ment : rural origins, blue collar background, education level, and
job satisfaction.
With 90 percent of the population now residing in urban areas,
and the mass media lamenting over the exodus from the land, we
lose sight of the fact that a vast number of adult Americans either
grew up in the countryside or are only one generation removed
from it (whether as immigrants or as "native" Americans).
The Forgotten Man gives evidence of particular fidelity to his
agrarian roots : men of the land are "more traditional in religious
beliefs, ascetic, work-oriented, puritanical, ethnocentric, isola-
tionist, uninformed, unlikely to read books or newspapers, dis-
trustful of people, intolerant of deviance, opposed to civil liberties,
opposed to birth control, and favorable to early marriage and high
fertility than all or most classes or urban workers." 12 Raised
against such a parental and community backdrop, the Forgotten
Man, however long he may have been an urban or suburban dwel-
ler, may honor a backwoods fundamentalism all his life.
With the shift of the labor force from blue-collar to service
and white-collar occupations, a vast bloc of adult Americans
either grew up in the homes of blue-collar workers or were
raised by parents who had. Whether the Forgotten Man today
is employed at white-collar or blue-collar pursuits, he may live
under the influence of three legacies from his background. First,
many Forgotten Men have no particular confidence in their ability
to influence public policy. They downgrade their event- and
law-shaping potential, and are inclined to a political apathy that
oscillates between occasional extremist adventures. Second, For-
gotten Men remain intensely suspicious of "outsiders"; advice
Government and the "Forgotten Man" 71
is respected most when it comes from other members of the
same ethnic stock, religion, and "old neighborhood." Thus the
Forgotten Man screens out a host of modernizing influences and
insulates himself from change. Finally, the Forgotten Man is
distrustful of the public rhetoric of authority. Whether it be
the TV press conferences of officeholders or the stump speeches
of office-seekers, the Forgotten Man declines to trust or be-
lieve; like workers everywhere, he fears being fooled as well as
Forgotten.
In a nation taking pride in its steady increase in average
education levels, a great many adult Americans nevertheless are
either only high school graduates or dropouts. Given the im-
portance of education in conditioning mental abilities, in shaping
personality, and in helping to determine life chances, the For-
gotten Man suffers frustrations over this complex and fast-
paced life. Uncertain reasoning, depressed self-esteem, and poor
career achievement take on new meaning in the face of his weak
educational history. A preference for simple solutions to intricate
problems, an impatience with exacting explanations, and a pro-
pensity to rely more on word of mouth than the printed word
extend this bleak view of reality.
Unable to follow the refinements of current events, the under-
educated often adopt black/white or self-serving explanations to
political dilemmas:
The less sophisticated and stable an individual, the more
likely he is to favor a simplified and demonological view of
politics, to fail to understand the rationale underlying the
tolerance of those with whom he disagrees, and to find diffi-
culty in grasping or tolerating a gradualist image of political
change. 13
Acceptance of the norms of democracy requires a high level of
educational sophistication and ego security both qualities which
the Forgotten Man lacks.
Finally, despite the advances in work made by labor unions,
by enlightened industrialists, and by industrial social scientists,
a vast bloc of adult Americans enjoy few rewards from their
work and have even fewer illusions about soon getting much
from it. It dehumanizes anyone to work in an auto assembly
plant putting the same four screws in the same four holes in
one car after another every seventeen and a half seconds with
two twelve-minute restroom breaks and a forty-five minute lunch
break day after day after day.
Most men at this occupational level have little intrinsic satis-
faction; whether blue-collar or white-collar the workers are
taxed by skill-dissolving specialization, by frequent speedups,
and by job-eroding automation. In response, many workers adopt
72 Report of the Task Force on Law and Law Enforcement
elaborate 'defenses, including withdrawal (daydreams, fantasies
of leaving to start a small business), rationalization ("work has
no meaning for anyone"), projection ("the work force includes
others still poorer off"), and aggression (hostility toward the
work process, the work, and the supervisors).
The dreary quality of the work of many men and women em-
ployed in highly-automated industries follows from the latest
phase of the Industrial Revolution where men have become
servers of the machines rather than the classic first-phase situ-
ation when machines multiplied the power and speed of the
operator. To a large extent, the worker has become a troublesome
auxiliary valued to the extent that he does not use initiative or
ingenuity in his job the machine isn't programmed for bright
ideas and to the degree that he does not, by exhibiting human
foibles such as boredom and a sense of his own importance, inter-
fere with the processes of a system designed around the machines
rather than around the men. This development extends to a lesser
degree to the crafts, where prefabrication makes high skills less
useful, and the service industries, where the man who used to
ferret out defects like a detective, now often simply pulls and
replaces modular components. While the lower-echelon white-
collar worker may be considerably better off, much clerical work
still amounts to so much pencil-pushing and paper-shuffling.
Also, at the occupational level at which many of the group are
found, jobs are often unionized. On the one hand, this offers
a form of security and protection that many rightfully seek ; but
on the other hand, the trade union experience of many Forgotten
Men proves a very negative one. They complain that union
bureaucracies have grown inhuman, rigid, and unresponsive ; that
the rank-and-file no longer shape union policies or have a real
chance of gaining important union posts ; and that labor leaders
overly-respond to industry demands which they find incomprehen-
sible or indefensible, or to demands that minority group members
get privileged consideration in jobs and apprenticeships. 14
Feeling this way, many workers relate to their union locals
much as to various levels of government. They casually dismiss
any sense of personal responsibility or involvement. They rarely
attend meetings, grudgingly pay dues, and resist dues increases
or the creation of new taxes. They go to the election polls if the
issues on the ballot are dramatized and if there is little personal
inconvenience. Cynicism rationalizes the resultant state of affairs.
They shrug off the absence in their unions of a legitimate op-
position party, the conversion of elective posts into sinecures,
or even occasional intimidation, as all part of the natural order
of things. Can this attitude, asks Neil W. Chamberlain, extend
to the broader society of which it is a part? 15
Feeling this way as a trade unionist, the Forgotten Man also
Government and the "Forgotten Man" 73
gets little satisfaction from Organized Labor's political activities.
Rather than sense renewed personal power through his member-
ship in Labor's 16-million-member lobby, he dismisses the AFL-
CIO's political efforts as foreign and overly-complex. Sym-
pathetic with the rigid anti-Communist stand of AFL-CIO head
George Meany, these men suspect the "ultra-liberal" stand the
Labor Federation takes on domestic matters. Indifferent to
Labor's efforts to reward and punish lawmaking "friends" and
"enemies," the union Forgotten Man resents suggestions that
Labor controls his vote. On occasion these men emphasize their
independence by openly ignoring or defying Labor's political
recommendations, and nurture instead their characteristic feel-
ing of political aloofness, aloneness, and alienation.
THE FORGOTTEN MAN'S CASE AGAINST GOVERNMENT
In his "resentment," the Forgotten Man believes that his plight
has been overlooked and that his detractors in public affairs out-
number and overwhelm his friends. He bitterly resents that his
losses seem to go either unnoticed or are even accepted or ap-
plauded.
What merits do these complaints have? On the one hand, every
presidential candidate since Herbert Hoover recognized, valued,
and sought the distinct support of this particular group of people.
While the campaign styles of George Wallace, FDR, Adlai
Stevenson, and Thomas Dewey may represent a broad spectrum,
all four realized the concerns of the Forgotten Man. On the other
hand, in the long stretch between campaigns the undereducated,
unorganized, and untrusting Forgotten Man might think himself
both out of mind and out of favor with decision-makers. Even as
a "squeaky wheel gets the most grease," and as the mass media
concentrate on the violent and the sensational, so does concern
shift away from the inarticulate, unseen, and little understood
mass of people. The Forgotten man may be right: his rather
vague concerns do get lost between the ballot box, where he is
supreme, and the decision-making process, where the action is.
This nation little manages to care for many of its dying, much less
its walking wounded.
Less convincing is the grievance that finds a conspiracy be-
hind every government move that disappoints. With the episodes
of McCarthy, Lattimore, MacArthur, Coplon, Forrestal, Rosen-
berg, and others in his mind, the Forgoten Man likes to explain
governmental neglect in conspiratorial terms; he also thinks he
is being victimized by the intellectuals, by the liberal "cosmopoli-
tans," and by others who disapprove of his rigidity in sexual,
religious, moral, patriotic, military, and political matters. Ex-
amples of this kind of conspiracy range from unpopular OEO
74 Report of the Task Force on Law and Law Enforcement
subsidization of birth-control clinics to the imposition by distant
bureaucrats of race integration guidelines for local schools and
the encouragement the Office of Education allegedly gives to the
development of sex education curricula. These hardly qualify as
conspiracy. Yet while it may help his ego to think such actions
are taken with a conscious concern to hurt him, a bitter truth
holds that they rather are taken with unconscious indifference to
him.
Regarding "envy," the Forgotten Man believes both that he has
lost power, and that he can specify who has stolen it away from
him; but the relevant "evidence" on this issue is exceedingly
mixed.
On the one hand, government funds, manpower, and creative
effort have recently helped the poor catch up and cross the
fundamental divide that separates the Underclass from the
Working-Class. Nevertheless, this aid would never have gone to
the Forgotten Man in any event, but would have remained
undeployed or have been redirected to more powerful interests.
Furthermore, no clear evidence supports success in the effort
to catch up: regrettably, ghetto conditions in our cities remain
an ugly reality. The Forgotten Man widely assumes that the bold
promises made to the Underclass (which excluded any considera-
tion of his needs) were fulfilled. So we have the farcical situation
of the Underclass which is angry because the pie is still in the
sky, and the Workingclass which is envious because of the pie
the Underclass isn't eating.
The grievance over who has stolen his power generally re-
duces either to a vague indictment of the blacks and their white
liberal allies, or to a specific castigation of "spokesmen" like
Carmichael, Brown, Cleaver, and Newton. To argue that Ameri-
can history shows this nation's ability to sustain considerable
overall advancement by a number of competitive class, ethnic, or
racial groups is dismissed as irrelevant by the Forgotten Man.
Contemporary turmoil is incorrectly seen as unique.
Regarding "disappointment," the grievance holds that the
institutions of government have abandoned the American Way
and are luring the bulk of the American population away from
fundamental Americanism. Examples include the Supreme Court
ban on religious observances in public school, the Federal Govern-
ment's imposition of semi-socialized medicine on the structure of
health care (via Medicare and Medicaid legislation), the Federal
Government's pressure on citizens to alter personal habits (such
as smoking) , some State governments' abandonment of the death
penalty, and local government's employment of deficit-spending
policies. Of course, all these examples also yield to a different in-
terpretation.
Finally, regarding "uncertainty," the Forgotten Man grieves
Government and the "Forgotten Man" 75
because there is no room for him inside, and little interest paid
to him by, the two major political parties. Where the Goldwater
capture of the Republican Party in 1964 and the surprising
inroads made into Democratic Party affairs in 1968 by McCarthy
and Kennedy point up the considerable latitude for major change
in the two dominant parties, the record of the parties in getting
the Forgotten Man involved hardly inspires confidence. The atti-
tude of indifference dominates ; ward leaders and block captains
conspicuously appear before elections, only to go into hibernation
afterwards.
As for the nature of current political thought and trends,
the Forgotten Man may very well think he is not taken seriously
enough. After all, he can point out, pollsters find one-third of all
Americans agree that the cities are unmanageable, and that
money spent in them is wasted. Forty percent agree that air
pollution is just about impossible to control. Fifty percent agree
that the courts have been too lenient on criminals and thus have
encouraged disorder. Fifty-five percent agree that something is
deeply wrong with our society. And eighty-one percent agree
that law and order has broken down in this country, and that it
is time for a crackdown on civil rights protestors. 16
Impressed with such local-level moves as the increasingly stern
use made of police and National Guardsmen to curb rioters, the
Forgotten American is aggrieved that others make too little of
such matters. He strongly thinks that it remains exceedingly
possible to return this country to his brand of fundamentalism :
one need only to employ such conventional means as the ballot
(defeat of open housing laws, school bond issues, fluoridation
acts), legislation (enactment of harsh penalties for college demon-
strators, draft resisters, and war protestors), and party politics.
CONCLUSION
What governmental actions might help ease the Forgotten
Man's alienation from the institutions of government and reduce
the potential for extremism and violence which that alienation
often represents? The Forgotten Man does not necessarily know
himself what will help, at least not with clarity, for research
demonstrates the considerable confusion and self-deception that
characterizes emotion-laden matters. 17
One important step at the national level is the successful con-
trol of inflation. In 1969, it is the most immediate threat to the
Forgotten Man. He spends at least forty hours a week earning
money for himself and his family, not counting the hours he
may spend getting to and from his job. That money is usually
spent in a diligently budgeted and frugal manner. Luxuries are
few, added comforts are often expensive. The typical Forgotten
76 Report of the Task Force on Law and Law Enforcement
Man is continually in debt with a home mortgage, and most of his
durable goods are purchased on long-term credit. He is, because
of his economic dependence, the outstanding victim of the price-
wage spiral. He feels the pinch as he makes little or no headway
out of the tightly oppressive cycle of work-spend-work-spend
just to keep his family fed, housed, clothed, and healthy. A small
variation in income or prices can make the difference between
financial hardship or relative comfort.
Another matter on which the Forgotten Man could be better
satisfied is taxes, which become even more painful under the
pressures of inflation. According to outgoing Treasury Secretary
Joseph W. Barr in his parting statement to Congress, "We face
now the possibility of a taxpayer revolt if we do not soon make
major reforms in our income taxes. The revolt will come not
from the poor, but from the tens of millions of middle-class
families and individuals with incomes of "$7,000 to $20,000 . . .
who pay over half of our individual income taxes." He continued :
"The middle classes are likely to revolt against income taxes, not
because of the level or amount of the taxes they must pay but
because certain provisions of the tax laws unfairly lighten the
burdens of others who can afford to pay. People are concerned
and indeed angered about the high-income recipients who pay
little or no federal income taxes." 18 The term "revolt" may as
yet be too strong, but embittered taxpayers are registering in-
creasing protests over inequities such as the fact that in 1967
there were 155 individuals and couples who reported incomes of
more than $200,000 each and paid no federal income tax at all.
But the federal income tax, even with the surtax, looms not as
the worst villain in the eyes of the Forgotten Man. Rather, it is
state and local taxes which are growing at unprecedented rates as
the cost of goods and services shoots upward. State and local
expenditures have been rising much more rapidly than Federal
expenditures for domestic purposes, although the Federal govern-
ment collects two-thirds of all the taxes whereas state and local
governments collect only one-third. Thirty-five states have
adopted an income tax, and many this year are raising their sales
taxes at least one more percentage point. Property taxes have
gone up most dramatically since they serve as the tax foundation
for most communities. It is not unusual to see a ten to fifteen
percent hike each year in the property assessment tax.
Even with these increased taxes, however, the Forgotten Man
can see few benefits. The cities, the schools, and the streets con-
tinue to deteriorate. He sees no visible improvement in the quality
of his living environment, and the rise in crime continues, as
does the growth of minority discontent and the "staggering" wel-
fare roles 19 all this combined with headline reports of tax loop-
Government and the "Forgotten Man" 77
holes for the rich and corruption and personal greed in high
places.
The public services upon which the Forgotten Man increasingly
depends cannot be allowed to falter. Law enforcement must more
effectively keep the Forgotten Man's neighborhood safe from the
fear of crime in the streets and in the home, especially as that
neighborhood opens up to Negro residents escaping from the
racial ghetto. The public schools must more capably teach the
Forgotten Man's children the skills they need to ascend a step or
two up the socio-economic ladder. Health care, legal aid, and other
welfare services must be provided not only to the very poor but
also to families with marginal incomes who cannot pay full
rates without real financial hardship. As the National Commis-
sion on Urban Problems has urged, the services requirements
of our metropolitan areas (where two-thirds of our population
lives) must be met through the increase in federal tax receipts
coming from the gains in national productivity, through a more
humane reordering of national expenditures, and through re-
forms in our system of taxation.
But if the government is to take the necessary steps to meet the
needs of the Forgotten Man for public services, the confidence
of the Forgotten Man in those who run his government at all
levels must increase. Otherwise, public support for these steps
will not come. The degree of communication between officials
and constituents must improve, so that government will not seem
unconcerned about problems like crime in the streets which
most trouble the Forgotten Man. Means must be developed for
redressing the grievances of individuals against petty outrages by
government bureaucracies, so that government will not seem to be
permanently indifferent in its dealings with the Forgotten Man.
Perhaps most importantly, dishonesty and greed among public
servants must be prevented to the extent possible by formalized
requirements of financial disclosure and ethical conduct, with
appropriate enforcement mechanisms, so that government and
its activities will not seem to serve private rather than public
interest.
Only if the Forgotten Man's alienation and disaffection from
his government are reduced, if not eliminated, will it be possible
for America's leaders to initiate the increased commitment of
needed resources to the public sector. Increasingly, the quality
of life for each of us depends upon its quality for all of us.
REFERENCES
1 "... the brooding and uncomplicated mind, with proper encouragement,
might detect subversion not only behind the UN and the TVA, but also the
French and Indian War, the Pure Food and Drug Act, compulsory vaccina-
tion for smallpox, the abolition of entail and primogeniture, the bank holi-
78 Report of the Task Force on Law and Law Enforcement
day of 1933, the British Reform Act, Red Cross blood banks, the Congress of
Vienna, the election of Grover Cleveland, Teapot Dome, and public venereal
clinics." Willie Morris, "Cell 772, or Life Among the Extremists," Commen-
tary, October 1964, at 38. See also Seymour Martin Lipset, "An Anatomy
of the Klan," Commentary, October 1965, at 74-84.
2 For discussion, see James Q. Wilson, "A Guide to Reagan Country, The
Political Culture of Southern California," Commentary, May 1967, at 37-45.
See also Pete Hamill, "The Revolt of the White Lower Middle Class," New
York, Apr. 14, 1967, at 24-29; Edward Schnerer, "The Scar of Wallace,"
Nation, Nov. 4, 1968, at 454-457. HamilPs essay is one of the finest on the
subject available anywhere.
3 For relevant conceptual refinement, see Marvin E. Olsen, "Two Cate-
gories of Political Alienation," Social Forces, March 1969, at 288-298. For
historical background, see Irene Taviss, "Changes in the Form of Alienation :
The 1900's vs. The 1950's," American Sociological Review, February 1969,
at 46-57; John H. Bunzel, Anti-Politics in America (New York: Knopf,
1967).
4 Quotations are from Morris, supra note 1 at 38. Harry Jones, Jr., The
Minutemen (New York: Doubleday, 1968); C. Wright Mills, White Collar:
The American Middle Classes (New York: Oxford University Press, 1951);
Richard H. Rovere, "The Conservative Mindlessness," Commentary, March
1965, at 38-42.
5 In connection with both the Under-actors and the Under-believers, see
Arthur B. Shostak, "Chapter Fourteen: Blue Collar Politics" in Blue-Collar
Life (New York: Random House, 1969). See also Herbert Gans, The Urban
Villagers: Group and Class in the Life of Italian-Americans (New York:
Free Press of Glencoe, 1962).
6 See, for example, Irving Bernstein, The Lean Years : A History of the
American Worker, 1920-1933 (Boston: Houghton-Mifflin, 1960).
7 Caroline Bird, The Invisible Scar (New York: McKay, 1966), at 17. See
also David A. Shannon, ed., The Great Depression (Englewood Cliffs, N.J.:
Prentice-Hall, 1960); Malcomb Cowley, Think Back On Us (Carbondale, 111.:
Southern Illinois University Press, 1967).
8 Murray Kempton, Part of Our Time : Some Monuments and Ruins of the
Thirties (New York: Dell, 1967) at 1, 10.
9 David Cort, New York Times Book Review, March 24, 1968, at 38.
See also Milton Derber and Edwin Young, eds., Labor and the New Deal
(Madison, Wis.: University of Wisconsin Press, 1961).
10 See Adolph A. Hoehling, Home Front, USA : The Story of World War II
Over Here (New York: Crowell, 1966) ; Milton Derber, "Labor Management
in World War II," Current History Magazine June, 1965, at 340-341; "Fit-
ter's Night" in Arthur Miller's / Don't Need You Any More (New York:
Viking, 1967).
11 This section draws heavily on Shostak, "Chapter Two : Blue Collar
Odyssey," supra note 5. See also David Danzig, "Conservatism After Gold-
water," Commentary, March, 1965, at 31-37.
12 Norval D. Glenn and Jon P. Alston, "Rural-Urban Differences in Re-
ported Attitudes and Behavior," The Southwestern Social Science Quarterly,
March, 1967, at 381-400.
13 Seymour Martin Lipset, "Democracy and Workingclass Authoritarian-
ism," American Sociological Review, August 1959, at 492.
14 See, for example, Sidney M. Peck, The Rank-and-File Leader (New
Haven: College and University Press, 1963); Paul Sultan. The Disenchanted
Unionist (New York: Harper & Row, 1963).
is Neil W. Chamberlin, The Labor Sector (New York: McGraw-Hill, 1967),
at 207.
Government and the "Forgotten Man" 79
16 From 1968 and 1969 polls provided by the Harris polling organization,
as published in major city newspapers.
I? For the clearest and most compelling statement of the case, see Snell and
Gail J. Putney, Normal Neurosis: The Adjusted American (New York:
Harper & Row, 1964). See especially their discussion of "misdirection," or
"behavior motivated by a need, but inappropriate to the satisfaction of that
need," at 14-15. Also useful is Robert Endleman, "Moral Perspectives of
Blue-Collar Workers," in Arthur Shostak and William Gomberg, eds., Blue-
Collar World: Studies of the American Worker (Englewood Cliffs, N.J.:
Prentice-Hall, 1964), at 308-315.
is U.S., Congress, Joint Economics Committee, 1969 Economic Report of
the President, Hearings, prepared statement of Secretary of the Treasury,
Joseph W. Barr, 91st Cong., 1st sess., Jan. 17, 1969, at 46.
19 The Forgotten Man has not been told that of the 8.4 million people on
welfare in the United States, less than 80,000 are employable adult men.
See National Commission on Urban Problems, Building the American City
(Washington, B.C.: Government Printing Office, 1968), at 3.
CHAPTER 5
AMERICAN SOCIETY AND THE
RADICAL BLACK MILTANT*
The Report of the Kerner Commission, published in March of
1968, concerned itself primarily with the phenomenon of urban
rioting and with the appropriate responses of society to that
phenomenon. Recent developments in our racially troubled na-
tion make it necessary to consider how our political and social
institutions should respond to a different but related phenome-
non: the small but increasing number of "radical black mili-
tants" who actively espouse and sometimes practice illegal
retaliatory violence and even guerrilla warfare tactics against
existing social institutions, particularly the police and the
schools.
This new kind of purposeful violence is potentially even more
destructive than the urban riots have been. We as a nation must
take effective steps to stop the spread of radical black militancy,
and we shall be effective only if we as a nation understand what
it is we are dealing with. This chapter is intended to contribute
to public understanding by tracing the multiple causes of radi-
cal black militancy and by outlining the principles which should
govern the response of our nation's institutions to this threat.
THE NATURE OF RADICAL BLACK MILITANCY
In the effort to achieve freedom, equality and dignity, Negroes
in America have repeatedly engaged in militant action and have
continuously experimented with a wide variety of tactics, ideolo-
gies, and goals: insurrection and riot, passive resistance and
non-violence, legal action and political organization, separatism
and integration all these and many others have been tried by
* This chapter was prepared by James S. Campbell largely as a synthesis
of material contained in the Reports of this Commission's Task Forces on
Historical and Comparative Perspectives on Violence and on Violent Aspects
of Protest and Confrontation, as well as on the basis of the Report of the
National Advisory Commission on Civil Disorders. For a fuller description
of sources, see the Note following this chapter.
81
82 Report of the Task Force on Law and Law Enforcement
black people in every period of our history. Black protest in
America today is a similarly complex phenomenon. Many black
leaders are working quietly but effectively "within the system"
toward the same basic goals black well-being and dignity as
those who have adopted more militant tactics. Even that part
of the larger black protest movement which is now called "black
militancy" is a complex, many-dimensioned phenomenon, and
violence is only one part of it.
Three major themes stand out in contemporary black mili-
tancy :
(1) Cultural autonomy and the rejection of white cul-
tural values ;
(2) Political autonomy and community control ; and
(3) "Self -defense" and the rejection of non-violence.
Each of these three themes is a cluster of ideas, values and activ-
ities which are shared in widely varying degrees and combina-
tions by different groups and individuals. Those whom we call
"radical black militants," and who are the main focus of this
chapter, are Negroes who embrace notions of "self-defense"
which include illegal retaliatory violence and guerrilla warfare
tactics.
(1) Cultural autonomy. The movement toward black cultural
autonomy and rejection of white cultural values mixes both
indigenous and international influences. Looking backward at
the long history of white domination in this country, and out-
ward at what is seen as contemporary American "neocolonialism,"
black militants increasingly question the traditional values of
American culture. From the Negro perspective, the performance
of this country under the dominance of Western cultural values
must seem far less impressive than it looks in white perspective,
and militant blacks are now looking to their own cultural heri-
tage as a source of affirmation of a different set of values.
Supported by the revival of awareness of African history and
culture, militant blacks have grown more and more impatient
with what is seen as the attempt of American institutions such
as the universities, the schools and the mass media to impose
white cultural standards which ignore or deprecate the inde-
pendent cultural heritage of Afro-Americans. A SNCC position
paper proclaims :
The systematic destruction of our links to Africa, the
cultural cut-off of blacks in this country from blacks in
Africa are not situations that conscious black people in this
country are willing to accept. Nor are conscious black peo-
ple in this country willing to accept an educational system
that teaches all aspects of Western Civilization and dismisses
American Society and the Radical Black Militant 83
our Afro-American contribution . . . and deals with Africa
not at all. Black people are not willing to align themselves
with a Western culture that daily emasculates our beauty,
our pride and our manhood.
(2) Political autonomy. Contemporary black militancy is
oriented strongly to the idea of black community control and
the development of independent black political bases. The effort
of the militants to overcome black powerlessness, while at the
same time largely rejecting participation in traditional politi-
cal avenues and party organizations, is a result of several in-
fluences.
Perhaps most important has been the failure of traditional
politics to afford an effective means by which black leaders
can exercise power on behalf of their constituencies. A recent
study of Chicago politics, for example, showed that of a total
of 1,088 policy-making positions in federal, state and local
government in Cook County, only 58, or 5 percent, were held by
Negroes in 1965, although blacks comprised at least 20 percent
of the county's population. Nationwide, the number of black
elected officials is estimated at less than 0.02 percent of the
total of 520,000 elected officials despite the fact that blacks are
just under 12 percent of the population. ("Traditional politics"
may yet prove responsive to black leadership aspirations, how-
ever : in 1965 when the Voting Rights Act went into effect there
were but 72 black elected officials in the 11 Southern states;
after the 1968 elections that number had increased more than
fivefold to 388.)
Another major factor influencing the militants' thrust for black
political autonomy is the fact that residential segregation has
created the conditions for effective black political organization.
Residential segregation has meant that, in the black belt of the
South as well as in the urban North and West, blacks occupy
whole districts en bloc. With the growing concentration of
blacks in the central cities and of whites in the suburbs, more
and more cities are developing black majorities: in the next 15
years the number of major cities with Negro majorities will
rise from 3 to 13.
A third factor in the drive toward black community control
is the sharpened political perception that control over the cen-
ters of decision-making means control over the things about
which decisions are made, such as housing, employment, and
education, as well as other focal points of black protest like
the police and the welfare apparatus. Black power theorists like
Stokely Carmichael and Charles Hamilton believe that such con-
trol can be achieved only through independent black political
organizations :
84 Report of the Task Force on Law and Law Enforcement
Before a group can enter the open society, it must first
close ranks. By this we mean that group solidarity is nec-
essary before a group can operate effectively from a bar-
gaining position of strength in a pluralistic society. Tradi-
tionally, each new ethnic group in this society has found
the route to social and political viability through the orga-
nization of its own institutions with which to represent its
needs within the larger society.
(3) "Self-defense." The civil rights movement of the 1950's
and early 1960's stressed non-violence and what some called
"passive resistance." But civil rights workers in the South some-
times found that they could not depend upon local or even
federal officials for protection against violent attacks by the
Ku Klux Klan and other white terrorist groups. Local police and
sheriffs were often only half-heartedly concerned with the wel-
fare of rights workers, and in a few instances at least were
even active participants in terrorist groups. As a result, in the
mid-1960's a number of civil rights activists and their local
allies began to arm themselves, and local defense groups sprang
up in several black communities in the South.
At this time the focus of black protest began to shift to the
ghettoes of the North, and expanded notions of self-defense soon
arose. After the Watts riot of 1965, local Negroes formed a
Community Action Patrol to monitor police conduct during ar-
rests. (A UCLA survey showed that three fourths of the Negro
males in the Watts area believed that the police used unneces-
sary force in making arrests.) In 1966, a small group of Oakland
blacks carried the process a step further by instituting armed
patrols. From a small group organized on an ad hoc basis and
oriented to the single issue of police control, the Black Panther
Party for Self -Defense has since grown into a national organiza-
tion with a ten-point program for achieving political, social and
economic goals and with an evident willingness to resort to vio-
lence when it appears that only force and coercion will be suc-
cessful in attaining the Party's goals.
The confrontation between radical black militants and some
elements of the police has escalated far beyond self-defense
and has in some cases become a bloody feud verging on open
warfare. Aggressive attacks by black radicals on the police
obviously far exceed any lawful right of self-defense (just as
some of the instances of police aggression against black radi-
cals are clearly unlawful), but the radicals nonetheless believe
their attacks to be legitimate and to fall within "self-defense"
when that concept is properly understood. As a militant leader
argues, "We have been assaulted by our environment." This
"assault" is considered to neutralize moral restraints against
American Society and the Radical Black Militant 85
the use of counter-violence, which is thus seen by the radicals
not as aggression but still as "defensive" retaliation.
How easily violence against police and other symbols of au-
thority can be perceived as legitimate by radical black mili-
tants was demonstrated in the thoughts expressed before the
Violence Commission by a moderate Negro leader :
For you see, Mr. Chairman, what most people refer to as
violence in the ghetto, I refer to as self defense against the
violence perpetrated on the ghetto. Dr. King's widow has
put it well: "In this society," she said on Solidarity Day,
"violence against poor people and minority groups is
routine."
I must remind you that starving a child is violence. Sup-
pressing a culture is violence. Neglecting school children
is violence. Punishing a mother and her child is violence.
Discriminating against a working man is violence. Con-
tempt for poverty is violence. Even the lack of will power
to help humanity is a sick and sinister form of violence.
The people of the ghetto, Mr. Chairman, react to this vio-
lence in self defense. Their self defense is becoming more
violent because the aggressor is becoming more violent.
How has it come about that substantial numbers of black
people in this country, especially among the black youth, see
the government and the white majority as an "aggressor"?
UNDERLYING CAUSES OF RADICAL BLACK MILITANCY
In March of 1968 the Kerner Commission filed its historic Re-
port at the end of a comprehensive investigation into the causes
and prevention of the urban riots which have plagued this
country in the 1960's. The Commission found that the causes
of the rioting were "imbedded in a massive tangle of issues and
circumstances social, economic, political, and psychological
which arise out of the historical pattern of Negro-white rela-
tions in America." The most fundamental strand in that tangle,
said the Commission, is "the racial attitude and behavior of
white Americans toward black Americans."
White racial attitudes, the Commission found, are essentially
responsible for the "explosive mixture" in our cities that has
recently erupted into large-scale rioting. Three main ingredients
of the mixture were identified :
(1) Great numbers of Negroes have been excluded from
the benefits of economic progress through discrimination
in employment and education and their enforced confine-
ment in segregated housing and schools.
86 Report of the Task Force on Law and Law Enforcement
(2) The massive and growing concentration of impov-
erished Negroes in our major urban areas has greatly in-
creased the burden on the already depleted resources of the
cities and created a growing crisis of deteriorating facili-
ties and services and unmet human needs.
(3) In the teeming racial ghettos, segregation and pov-
erty have intersected to destroy opportunity and hope, to
enforce failure, and to create bitterness and resentment
against society in general and white society in particular.
The Commission found that other factors catalyzed the mixture,
factors such as the frustrated hopes aroused by the successes
of the civil rights movement; the climate of encouragement of
violence arising out of white terrorism and violent black protest
and rhetoric; and the frustrations of black political powerless-
ness and alienation from institutions of government and law.
Thus catalyzed, relatively minor racial incidents frequently
involving the police are sufficient to spark the mixture into an
explosion of violence.
The Kerner Commission's analysis of the causes of urban
riots is largely applicable to the phenomenon of radical black
militancy. Radical black militancy, like the urban riots, is ulti-
mately a response to conditions created by racial attitudes and
behavior that have widely prevailed among the white majority
since the days of slavery.
The reaction of many white Americans to the Kerner Commis-
sion Report, however, was to deny angrily that they were "rac-
ists," to point to friendships with individual Negroes, and ask if
the Commission thought that it was "white racists" who were
doing all the rioting. This response misconceives both the basic
thrust of the Kerner Commission Report and the true nature of
"white racism." That rather incendiary phrase should be un-
derstood as no more than a short-hand designation for a com-
plex social condition, an enduring institutional and ideological
legacy of white supremacy and Negro subordination, whose
source is to be found only in the whole tragic history of race
relations in this country. If we are to understand "white racism,"
we must understand this history in its three major phases
slavery, segregation and the ghetto.
(1) The institution of slavery. Slavery was established in
the New World almost immediately after its discovery by the
nations of Europe. For the blacks who were subjected to slavery,
the existing social systems of West Africa were interrupted,
and new, traumatic ones were imposed. Tribal institutions and
customs which prepared blacks to meet their needs and cope
as adults in African societies were no longer useful or possible.
A new kind of socialization was necessary in order to develop
American Society and the Radical Black Militant 87
not an adequate, competent participant in adult society but
rather a subhuman, dependent creature fully subservient to the
master's needs.
Children born into the slave system were prepared from
birth for a life of subservience. Nurture and physical care came
from an adult not in the interest of a family, kinship group
or tribe but in the interest of the master. Children were not
destined to become elders, chiefs, warriors, or traders and to
hold positions of respect and status within the tribe. Instead
they were to become slaves, and the processes of their individ-
ual development were distorted by this unnatural end. Probably
this is the reason why so many adult slaves cared so little
for children a fact which confounded slave owners and ob-
servers.
The adult slave was without power and without security. His
legal status was that of a piece of property, without rights in
court and without the protection of any institution. Completely
subject to their masters' control, dispersed throughout a larger
white culture, and unable to maintain the institutions of their
previous societies (kinship ties, family organization, religion,
government, courts, etc.), slaves were generally unable to run
away en masse, to organize effective large-scale attacks against
their oppressors, or even to turn inward on their own culture
for psychological support.
Some slaves were able to run away to the Indians, to Canada
or to "freedom" in the North. Most could not, however, but had
instead to find ways of adjusting to the slavery environment.
Some led a passive-aggressive existence in relationship to the
white master working as little as they could without being
punished, feigning illness, sabotaging property and generally
provoking the master. Some participated in the small, relatively
unorganized insurrections that occurred occasionally during the
slavery years. Others internalized their aggressions and en-
gaged in self-destructive behavior and in violent acts against
other blacks. Some found in Christianity a relationship to God
and a place in a spiritual kingdom that enabled them to endure
the sufferings of their life in this world. Still others adopted
a life style which tried to copy, to the extent possible, the style
of the white master. Common to all these adaptations, and
shaping the form they took, was the overriding fact of the
slave system.
The impact of slavery on white society was no less profound.
Because of their profound belief that "all men are created
equal" and that life, liberty and the pursuit of happiness are
among man's "inalienable rights," whites could not rationalize
the slave system simply on the basis of the economic need for
88 Report of the Task Force on Law and Law Enforcement
manpower. If slavery was to be justified, it was necessary to
believe that the Negro was inherently inferior, that he belonged
to a lower order of man, that slavery was right on scientific and
social, as well as economic, grounds. A large body of literature
came into existence to prove these beliefs and the corollary
belief in the natural superiority and supremacy of the white
race. The ideology of white superiority and black inferiority
was reinforced both by the destructive impact of slavery upon
Negroes generally and by the institutional and cultural denial
of individual Negro accomplishments in the face of overwhelm-
ing obstacles. For more than two centuries the institution of
slavery studiously wove the strand of racism deep into the
fabric of American life.
It is thus not surprising that the conditions of life in the
United States were hardly better for free Negroes than for
slaves. Some free Negroes achieved material success, a few even
owned slaves themselves or had white indentured servants, but
the vast majority knew only poverty and rejection by white
society. Forbidden to settle in some areas, segregated in others,
they were targets of prejudice and discrimination. In the South,
they were denied freedom of movement, severely restricted in
their choice of occupation, forbidden to associate with whites
or with slaves, and in constant fear of being enslaved. In both
North and South they were regularly the victims of mobs. In
1829, for example, white residents invaded Cincinnati's "Little
Africa," killed Negroes, burned their property, and ultimately-
drove half the black population from the city.
(2) Segreaation in the aftermath of slavery. The violence
of the Civil War tore the nation apart and succeeded in destroy-
ing the institution of slavery long after France (1794) and
England (1833) had abolished it in their overseas possessions
in the New World. But the War proved incapable of rooting out
the deeper structure of racism upon which slavery rested: that
had been built up over too long a time and was too firmly em-
bedded in American society, North as well as South. Indeed, as
we have said, racism had become an integral part of the black
man's experience in America : the large number of Negroes who
could not or would not leave the plantation after slavery indi-
cates the degree to which blacks had been absorbed into the
master-slave relationship.
After the war, blacks were quickly, and often violently, closed
out of the economic, political, and educational mainstream of
American life. The program of Radical Congressional Recon-
struction failed, for a variety of reasons, to provide blacks
with a solid economic, political or social base and consequently
failed as an adjustment tool. None of the organizational struc-
American Society and the Radical Black Militant 89
tures of the African culture remained to provide a basis for
group stability and direction. Only remnants of previous Afri-
can life-styles remained, greatly modified by the American expe-
rience and of little value in promoting adjustment in the
post-slavery period. As a result of factors such as these, Negroes
remained economically, socially and psychologically dependent
on whites who retained almost complete control.
In some respects the condition of the Negro worsened after
the war. Under the segregation system which rapidly developed
(and which was ratified by a series of Supreme Court decisions
culminating in the "separate but equal" doctrine embraced by
the Court in 1896), control and authority over blacks were
extended to all whites, most of whom were economically vul-
nerable and more in need of a psychological scapegoat than the
wealthier slave-owning class. Whites outside the planter caste
were more likely to act in an unjust, violent fashion toward
blacks.
The first Ku Klux Klan, arising in 1865 and lasting until
1876, was a principal means of keeping the Negro in his place
in the early postwar period. The Klan helped overthrow the
Reconstruction governments of North Carolina, Tennessee, and
Georgia, and was responsible, according to the findings of a
Congressional investigation in 1871, for hangings, shootings,
whippings, and mutilations numbering in the thousands. The
commanding general of federal troops in Texas reported : "Mur-
ders of Negroes are so common as to render it impossible to
keep accurate accounts of them." By 1877, when white govern-
ments had returned to power in all the Southern states, and
Reconstruction had been abandoned, the Klan and its allies in
the South had been so successful that the Negro was effectively
eliminated from the political life of the South.
Still denied the opportunity for personal achievement and
the resultant sense of adequacy and security which achieve-
ment brings, blacks made various adaptations to meet adequacy
and security needs in a society in which they were now "free"
but still rejected and abused. Religion was embraced more
firmly. Many informal and formal Afro-American mutual sup-
port organizations developed after slavery, reflecting the need
for black sharing and mutual support in a hostile society. Some
blacks continued as employees of their former masters and in
many cases identified strongly with whites. Some wandered
about, disorganized and hopeless.
Under the segregation system's omnipresent threat of vio-
lence, black parents had to teach their children to avoid ag-
gressive life-styles which might lead to disastrous conflicts
with whites. Such socialization, similar to that under slavery,
90 Report of the Task Force on Law and Law Enforcement
naturally led to the diminution or destruction of the capacity
for exploration, learning and work in many Negroes. Inade-
quately socialized, many blacks were largely pleasure-oriented,
responding to inadequately controlled sexual and aggressive
drives by behavior that often resulted in violence and in con-
flict with the larger society. Such behavior was not viewed by
whites as the natural product of a society which had failed
to create the conditions for adequate social and psychological
development among many blacks instead it was viewed simply
as "the way niggers are."
(3) The rise of the urban ghetto. In 1910, 91 percent of
the country's 9.8 million Negroes still lived in the South. During
World War I large-scale movement of Negroes out of the rural
South was stimulated when the industrial demands of the war
created new jobs for unskilled workers in the North, while
floods and boll weevils hurt farming in the South. The Depression
temporarily slowed this migratory flow, but World War II set it
in motion again. The migration proceeded along three major
routes: north along the Atlantic Seaboard toward Washington,
Baltimore, Philadelphia, New York, Boston; north from the
Mississippi to St. Louis, Chicago, Detroit, Milwaukee ; west from
Texas and Louisiana toward Los Angeles and San Francisco.
While the total Negro population more than doubled from 1910 to
1966 (from 9.8 million to 21.5 million), the number living out-
side the South rose elevenfold (from 0.9 million to 9.7 million)
and the number living in cities rose more than fivefold (from
2.7 million to 14.8 million).
The early pattern of Negro settlement within the Northern
cities followed that of other immigrants; they converged on the
older sections of the central-city because the lowest-cost hous-
ing was located there, because friends and relatives were likely
to be living there, and because the older neighborhoods then
often had good public transportation. Unlike other immigrants,
however, the Negro remained and remains today largely con-
fined in the original ghetto still the prisoner of the American
racial heritage.
In the light of our whole racial history, should we be sur-
prised that, for the Negro, the great cities of the North have
not been ports of entry into the mainstream of American life?
Can we fail to see that the black ghetto is ultimately the product
of slavery and segregation, that it is but the third great phase
of the black man's bondage in America ? The Report of the Ker-
ner Commission has exhaustively described the conditions of the
black ghetto and the manner of its formation. For our purposes
we need only to illustrate a few of the many continuities which
American Society and the Radical Black Militant 91
exist between life in the ghetto and the black experience under
slavery-segregation.
Race riots and violent racial conflict were a hall-
mark of the early-20th century Negro experience in north-
ern cities, the Negroes invariably suffering most of the
violence. In East St. Louis, 111., a riot which claimed the
lives of 39 Negroes and 9 whites erupted in 1917 against
a background of fear by white workingmen that Negro
labor was threatening their jobs. Other major riots by
whites against blacks took place in 1917 in Chester, Pa.,
and Philadelphia. In 1919 there were riots in Washington
(B.C.), Omaha, Charleston, Longview (Tex.), Knoxville, and
Chicago. In Chicago between July 1917 and March 1921, 58
Negro houses were bombed, and recreational and residen-
tial areas were frequent sites of violent racial conflict. Ne-
gro soldiers returning home from service in World War I
in segregated combat units were mobbed for attempting
to use facilities open to white soldiers.
Many Negro families in the ghettos attained incomes,
living standards and cultural levels matching those of
whites who upgraded themselves out of ethnic neighbor-
hoods, but they still remained in predominantly black
neighborhoods because they were effectively excluded from
white residential areas. Able to escape poverty, they were
unable to escape the ghetto and their confinement ren-
dered their accomplishments less visible to the larger soci-
ety which continued to embrace the old myth of innate
Negro inferiority. More often, however, the pervasive dis-
crimination in employment, education and housing ren-
dered the escape from poverty even within the ghetto all
but impossible.
Many ghetto blacks responded to their condition of
oppression with self-hatred and low self-esteem. These
traits in turn gave rise to passive, self -destructive modes
of behavior such as excessive use of alcohol and narcotics,
violent assault on a friend over a dime or a bottle of wine,
poor impulse control generally, low aspiration levels, and
high rates of family conflict. Such patterns of behavior are
reflected in the far higher Negro arrest rates for violent
crime: urban arrest rates of Negroes for robbery are 16
times higher than white rates and for homicide they are
17 times higher.
Another highly destructive pattern begun under slavery
continued under conditions of unemployment in the urban
ghetto: the Negro male often played only a marginal role
in his family and found few cultural or psychological re-
92 Report of the Task Force on Law and Law Enforcement
wards in family life. Often the Negro father abandoned
his home because he felt useless to his family, the absence of
the father then condemning the sons to repeat the pattern.
Today only three-fifths of all Negro children in central cities
live with both parents, and in families with incomes under
$4000 only one quarter of the Negro children live with both
parents.
DIRECT CAUSES OF RADICAL BLACK MILITANCY
To say that an enduring structure of white racial attitudes
and behavior is ultimately responsible for the phenomenon of
radical black militancy is onlv to identify a first cause, an un-
derlying matrix. We must also look to more direct causes in
order to understand why radical black militancy has emerged
at this particular point in our history. Four different kinds of
direct causes can be identified, each inextricably interwoven
with all the others and with the underlying social matrix cre-
ated by slavery, segregation and the ghetto :
(1) the political cause: the frustrations of the civil
rights movement ;
(2) the ideological cause: the rise of an "anti-colonial"
dogma ;
(3) the economic cause: the widening gap between white
and black material advancement ;
(4) the psychological cause: the breaking of the Negro-
white "dependency bond."
(1) The political cause. From the decline of Marcus Gar-
vey's separatist philosophy in the 1920's until quite recently,
the dominant thrust of black protest was toward political, so-
cial, economic and cultural inclusion into American institutions
on a basis of full equality. Always a powerful theme in Amer-
ican black militancy, these aims found their maximum expres-
sion in the civil rights movement of the 1950's and early 1960's.
For the civil rights movement, the years before 1955 were
filled largely with efforts at legal reform, with the NAACP,
especially, carrying case after case to successful litigation in
the federal courts. There was a considerable gap, however, be-
tween the belief of the NAACP and other groups that major
political changes were in sight and the reality of the slow pace
of change even in the more advanced areas of the South. The
gap was even greater between the conservative tactics and
middle-class orientation of the established civil-rights organi-
zations and the situation of the black ghetto masses in the
North.
American Society and the Radical Black Militant 93
Since the NAACP, the Urban League, and other established
groups continued to operate as before, new tactics and new
leaders arose to fill these gaps. In 1955, Mrs. Rosa Parks of
Montgomery, Ala., refused to give up her bus seat to a white
man, and a successful boycott of the bus system materialized,
led by a local minister, the Reverend Martin Luther King, Jr.
Around the same time, with less publicity, another kind of or-
ganization with another kind of leadership was swiftly coming
into its own in the northern ghettos: Elijah Muhammed and the
Nation of Islam represented those segments of the black com-
munity that no one else, at the moment, seemed to be repre-
senting the northern, urban, lower classes. It was this strange
sect which would produce the man who was destined to rise
from a petty criminal to a "black shining prince" and who
would far overshadow Dr. King in influence among the new
generation of black militants : Malcolm X.
Neither the direct-action, assimilationist approach of King
nor the separatist, nationalist approach of the Black Muslims
were new. Rather, they were both traditional strategies of
black protest which had been adopted in the past in response
to specific situations. Direct action was used by the abolitionists
prior to the Civil War, by left-wing organizers in the crhetto in
the 1930's, and by CORE in the early 1940's. It had been
threatened by A. Phillip Randolph in his march on Washington
in 1941, but called off when President Roosevelt agreed to estab-
list a Federal Fair Employment Practices Commission. The roots
of black separatism are equally deep, reaching back beyond
Marcus Garvey in the 1920's to Martin Delaney, a Harvard-edu-
cated Negro physician and novelist who in the 1850's promoted
the migration of American Negroes to Africa, as philanthropist
and ship-owner Paul Cuffee had some forty years earlier.
The move to direct action in the south brought civil rights
protest out of the courts and into the streets, bus terminals,
restaurants, and voting booths. Nevertheless, it remained
deeply linked to the American political process and represented
an abiding faith in the power of the federal government and
in the moral capacity of white Americans, both northern and
southern. It operated, for the most part, on the implicit premise
that racism was a localized, essentially southern malignancy
within a relatively healthy political and social order; it was a
move to force American morality and American institutions to
cure the last symptoms of the diseased member of the body
politic.
Activists in SNCC, CORE and other civil rights organizations
met with greater and more violent resistance as direct-action
continued during the sixties. Freedom Riders were beaten by
94 Report of the Task Force on Law and Law Enforcement
mobs in Montgomery; demonstrators were hosed, clubbed and
cattle-prodded in Birmingham and Selma. In many parts of
the South, civil rights workers, black and white, were victim-
ized by local officials as well as by night-riders and angry
crowds. At the same time, the problems of white violence were
compounded by the intransigence of some southern courts and
juries, and by political constraints on the federal government
that prevented it from moving decisively toward a radical alter-
ation of the situation faced by the civil rights activists. Deeply
affecting the whole struggle were the continuing unlawful re-
sistance to integration by some southern governors such as
Faubus, Barnett and Wallace, and the relentless political pres-
sure applied by powerful segregationists such as Senator East-
land.
The Mississippi Freedom Summer of 1964 was a hybrid phe-
nomenon, less of a moral confrontation than Birmingham the
year before, and more of a new kind of power play. Its sponsor
was "COFO," the Council of Federated Organizations, a loose
ad hoc consortium funded by established groups such as the
NAACP, CORE, SCLC, and the National Council of Churches,
but given its cutting edge by the leaders of SNCC. Master-
minded by a SNCC staff disillusioned by white reprisals and
violence against earlier voter registration drives, the COFO
Project was presented as a massive effort to get voter registra-
tion off the ground with the aid of large numbers of vacation-
ing white college students. But COFO's voter registration p-oal
turned out to be a cover for a more ambitious and aggressive
SNCC strategy: to provoke massive federal intervention in
Mississippi amounting to an occupation and a "second effort
at Reconstruction."
The Mississippi summer was an extraordinary one for many
of the more than 2,000 participants from all over the United
States. Three young men were murdered by a white conspiracy,
and many others saw at firsthand the ugly face of racial re-
pression. The project culminated, not with a second Reconstruc-
tion, but with the Mississippi Freedom Democratic Party's fail-
ure to get its delegation seated at the 1964 Democratic national
convention (although two at-large seats were offered and spe-
cial efforts were promised to open state parties to Negroes
during the next four years). This symbolic, highly emotional
defeat climaxed a growing disillusionment with "white liber-
als" among young blacks, and perhaps more than any other
single event destroyed the faith of civil rights activists in the
ability of "the system" to purge itself of racism.
By the middle of the decade, then, many militant Negro
members of SNCC and CORE began to turn away from Ameri-
American Society and the Radical Black Militant 95
can society and the "middle-class way of life." Despite the
passage of the Civil Rights Act of 1964 and the Voting Rights
Act of 1965, they became deeply cynical about the tradition
of American liberal reform. They talked more and more of "revo-
lutionary" changes in the social structure, and of retaliatory
violence, and they increasingly rejected white assistance. The
new militants insisted that Negro power alone could compel
the white "ruling class" to make concessions. Yet, at this time,
they also spoke of an alliance of Negroes and unorganized
lower-class whites to overthrow the "power structure" of capi-
talists, politicians and bureaucratic labor leaders whom they
accused of exploiting the poor of both races while dividing
them through an appeal to race prejudice.
The increased criticism of liberals, white intellectuals, and
federal bureaucracies was part of a broader turn to a renewed
critique of the situation of blacks in the North. To a large
extent, and despite such evidence as the Harlem uprisings of
1935 and 1943, most white northerners had congratulated them-
selves on the quality of their "treatment" of the Negro vis-a-vis
that of the South. But direct action by civil rights leaders in
Northern cities, largely in the form of street demonstrations,
had failed to make any substantial impact on the problems of
separate and inferior schools, slum housing, and police hos-
tility, although it had succeeded in lowering some barriers to
Negro employment.
With the explosion of Harlem and several other northern
cities in 1964, attention among black activist leaders was
drawn sharply to the problem of institutional racism in the
North, and this shift of focus was accelerated by the Watts
riot the following year. In a real sense, the outbreak of riots
not only surprised liberal whites, but most established
black civil rights leaders as well. While undermining the moral
credibility of liberal northerners as to the nature of the racial
situation in the North, the riots also left most civil rights lead-
ers without a vocabulary with which to express the deeper
emotions of the northern ghettos. There was a sense among
many young Negroes that established civil rights leaders could
not get results from the white majority, that they could not
speak to the kinds of issues raised by the riots, and that a
wide gulf separated those leaders mostly of middle-class back-
ground from the black urban masses.
In this setting the rhetoric of "Black Power" developed, and
was brought dramatically to the nation's attention on the
Meredith march from Memphis to Jackson in June 1966. SNCC
replaced its non-violent leader John Lewis with Stoke iy Car-
michael, and CORE elected Floyd McKissick, who refused to
96 Report of the Task Force on Law and Law Enforcement
denounce the Watts riot of the previous year. Under Carmichael
SNCC formally and deliberately disassociated itself from the
civil rights movement's traditional commitment to nonvio-
lence and took up a position on the leftward militant fringe.
In 1967, while Rap Brown made incendiary speeches around
the country, Carmichael traveled to Havana, Hanoi, and Moscow,
popularizing a new black revolutionary ideology. The extrava-
gant speeches and behavior of Carmichael and Brown amplified
the psychological effect of the 1967 riots on both blacks and
whites, while the riots themselves and especially the then
exaggerated reports of organized urban warfare lent credi-
bility to their rhetoric.
Thus, with the frustration of the civil rights movement and the
outbreak of the riots, younger and more militant black leaders
and organizations emerged to represent the interests of the
Northern urban lower classes, and the older representatives of
the civil rights movement were required to redefine their pro-
grams and techniques to accommodate these new forms of
militancy. The impact of the riots on young Negroes and on
established black leaders was graphically depicted in the testi-
mony before the Violence Commission of Sterling Tucker, Direc-
tor of Field Services of the National Urban League :
I was standing with some young, angry men not far
from some blazing buildings. They were talking to me
about their feelings. They talked out of anger, but they
talked with respect.
"Mr. Tucker," one of them said to me, "you're a big
and important man in this town. You're always in the
newspaper and we know that you're fighting hard to bring
about some changes in the conditions the brother faces.
But who listens, Mr. Tucker, who listens? Why, with one
match I can bring about more change tonight than with
all the talking you can ever do."
Now I know that isn't true and you know that isn't
true. It just isn't that simple. But the fact that we know
that doesn't really count for much. The brother on the
street believes what he says, and there are some who are
not afraid to die, believing what they say.
When black activists came to interpret the urban riots as
purposeful rebellions, and to advocate violence as one tech-
nique for achieving black dignity and well being, the phe-
nomenon of radical black militancy had become a part of the
troubled American racial scene.
(2) The ideological cause. By the mid-1960's, then, many
militant black leaders had become convinced that the aims and
American Society and the Radical Black Militant 97
methods of the civil rights movement were no longer viable.
The failures of the white majority to meet black expectations,
the fact of the urban riots, and the increasing American involve-
ment in Vietnam all served to catalyze a fundamental transfor-
mation in militant black perceptions of the place of the Negro
in American society. This transformation resulted in what can
be called an "anti-colonial ideology," which is aptly expressed
by a spokesman of the Black Panther Party as follows :
We start with the basic definition: that black people in
America are a colonized people in every sense of the term
and that white America is an organized imperialist force
holding black people in colonial bondage.
Unique when expressed by Malcolm X in 1964, the anti-
colonial perspective now provides many militant blacks with a
structured world view and, in the case of the radicals, with
a rationalization for violence. Many articulate black militant
spokesmen now see the final hope of black Americans in identi-
fication with the revolutionary struggles of the Third World.
Even moderate leaders focus attention on the discrepancy be-
tween the massive commitment of American resources abroad
and the lack of a decisive commitment to cure the social ills
stemming from racism at home. Martin Luther King wondered,
for example, why "we were taking the black young men who had
been crippled by our poverty and sending them 8,000 miles away
to guarantee liberties in Southeast Asia which they had not found
in Southwest Georgia or East Harlem."
Black militants in America have in the past looked to Africa
for recognition of common origins and culture, and the influ-
ence has been reciprocal. W. E. B. DuBois, one of the founders
of the NAACP in 1909-10, saw that the "problem of the color
line" was international in scope, and was a guiding force be-
hind the movement for Pan-African unity. Marcus Garvey,
founder in 1914 of the Universal Negro Improvement Associa-
tion, and other American and West Indian black nationalists
have stimulated the development of African nationalism and
informed the intellectual development of some of its leaders.
Today the successful revolt against colonialism in Africa and
other non-white regions has created a heightened sense of the
international character of racial conflict and has provided the
impetus for the growth of an anti-colonial ideology among
American black militants. The revolt against colonialism has
altered the structure of political power in the world, demon-
strating to black militants in America that peoples supposed
to be culturally and technologically "backward" can emerge
victorious in struggles with ostensibly supeior powers. "Two-
thirds of the human population today," wrote Malcom X, "is
98 Report of the Task Force on Law and Law Enforcement
telling the one-third minority white men, 'Get out/ And the
white man is leaving." With the disintegration of white rule
in Africa and the rise of autonomous black nations, political
autonomy for Negroes in America ranging from traditional
democratic concepts of community control to notions of geo-
graphic separatism has received a new impetus and a new
ideological component.
The success of the movements for political independence in
the colonial countries required a recognition that the plight of
the "native" was a political problem, and that political action
was the most effective vehicle of major social change. Early
nationalist movements in Africa, therefore, sought ideologically
to turn nearly every aspect of life into a political issue. This
was true, for example, of the area of culture, whose political
importance lay in the fact that "natives," as people without
history or culture, were also seen as people without political
claims of their own, and therefore as people to be dealt with
from above benevolently or otherwise.
Political ideology also worked its transforming magic on
violence. Through the same process of "politicization," instances
of black resistance in history were ideologically redefined as
precursors of contemporary political struggles. Native crime was
redefined as "pre-revolutionary" activity. Instances of rebellion
were sought in the past and their significance amplified.
This process extended to the creation of a whole new world
view. History was viewed as an arena of struggle between co-
lonial power and native population, with heavy emphasis on
the intrinsically violent character of colonial domination and
its supposedly irrevocable hostility to the interests of non-
whites. Colonialism was seen as dependent on the routinization
of violence, both physical and psychological, against the native.
Consequently, revolutionary violence against the colonial re-
gime was not only necessary, but justifiable, on both political
and psychological grounds. Colonialism, wrote Frantz Fanon, "is
violence in its natural state, and it will only yield when con-
fronted with greater violence." Further, he said, "at the level
of individuals, violence is a cleansing force. It frees the native
from his inferiority complex, and from his despair and inac-
tion ; it makes him fearless and restores self-respect."
Under the influence of radical militant propagandists such
as Stokely Carmichael, similar ideological developments have
taken place among some blacks in America. The anti-colonial
ideology has enabled black radicals to see urban riots as the
harbingers of revolution and to see in urban violence the means
of destroying white domination and achieving black dignity.
If, as the Panthers would have it, "White America is an orga-
American Society and the Radical Black Militant 99
nized imperialist force holding black people in colonial bond-
age" then it follows that violence against the police and other
agents or symbols of authority is not crime but heroism, not
merely an unlawful act but a revolutionary gesture against an
illegitimate government.
This poisonous ideology has found fertile soil in the black ghet-
toes of America. Its roots do not yet, perhaps, go very deep,
and the commitment to organized violence is found only among
a relatively small group of black radicals. Most Negro leaders
continue to believe that change can come in this country
through legitimate, orderly political processes, and, indeed, that
this is the only way it will come. But the anti-colonial ideology
has the potential for further growth, and it will grow to the
extent that the white majority can successfully be cast by radi-
cal propagandists in the role of oppressors of the black majority.
(3) The economic cause. History teaches us that men's frus-
tration over the material circumstances of their lives is a fre-
quent cause of collective violence. The more intense and wide-
spread the discontent is, the more intense and widespread the
violence is likely to be. Of course, the occurrence, extent and
form of economically motivated violence are strongly influenced
by other factors: the degree of legitimacy which the discon-
tented group accords to the existing social and political order;
the effectiveness of agencies of direct social control such as
the police; the extent to which political institutions afford
peaceful alternatives to violence; and many other factors. But
the economic motive, the frustrated desire for improved liv-
ing conditions, has undeniably been one important cause of
violence in many periods of man's history.
Has this cause been operative in the rise of radical black
militancy? The answer is clearly yes. A dominant theme of
black protest in the United States has always been the im-
provement of the material circumstances of the Negro, and this
goal has proved most frustratingly unobtainable precisely in
the cradle of radical black militancy: the northern urban
ghettoes.
The conditions of life in the racial ghetto have been exhaus-
tively examined elsewhere, particularly by the Kerner Commis-
sion. It is unnecessary for our purposes to repeat these findings
again in detail, since even a few of the facts of life in the ghetto
are enough to suggest the level of frustration that prevails there :
Unemployment rates for Negroes are double those
for whites. In the ghettoes in 1966 the unemployment rate
was 9.3 percent overall and even higher for blacks. More-
over, in these urban poverty areas two and one-half times
the number unemployed were underemployed : part-time
100 Report of the Task Force on Law and Law Enforcement
workers looking for full-time jobs, full-time workers earn-
ing less than $3,000 per year, or dropouts from the labor
force. Among nonwhite teenagers a group well represented
both in riots and in radical black militant activities the
unemployment rate in 1967 in poverty neighborhoods was
approximately 30 percent.
Blacks own and operate less than one percent of
the nearly 5 million private businesses in the country
typically small, marginal retail and service firms. Twenty-
odd banks out of a national total of 14,000 are black-
owned; 7 automobile dealerships out of 30,000; fewer than
8,000 construction contractors out of a total of 500,000.
In Washington, B.C., blacks comprise two-thirds of the pop-
ulation but own less than 7 percent of the business. Ninety-
eight percent of all black income is spent outside the black
community.
In the metropolitan northeast, Negro students start
school with slightly lower scores than whites on standard
achievement tests; by sixth grade they are 1.6 grades be-
hind the white students, and by 12th grade, they are 3.3
grades behind. Many Negroes between one-third and one-
half among male students fail to finish high school, the
Negro drop-out rate being more than three times the white
rate.
In 1965 a black woman was four times as likely to
die in childbirth as a white woman; the black child was
three times as likely to die in infancy as the white child.
White people on the average lived 7 years longer than black
people.
In 1966 the national illegitimacy rate among non-
white women was 26 percent; in many large city ghettoes
it is over 50 percent : in Harlem 80 percent of the first-born
are illegitimate. In 1966 over 50 percent of the known
narcotics addicts were Negroes. Rates of juvenile delin-
juency, violent crime, venereal disease, and dependency on
public assistance are many times higher in disadvantaged
Negro areas than in other parts of large cities.
In the face of undisputed evidence of the disadvantaged con-
dition of blacks in the urban ghettoes, some persons tend to
minimize the importance of deprivation as a cause of riots
and of radical black militancy. Two observations are commonly
offered in support of this point of view. First, it is pointed out
that Negroes have long suffered from frustratingly inferior
living conditions, yet they have never before resorted to col-
lective violence of the magnitude that has occurred in the last
five years. Secondly, it is urged that while the lot of the Negro
American Society and the Radical Black Militant 101
may be an unsatisfactory one, nonetheless it has been contin-
ually improving, particularly during the precise period when
the greatest violence has occurred. In support of this second
point, the following facts can be offered :
The non-white unemployment rate in 1966 and 1967
was the lowest since the Korean War, and in 1968 the
black unemployment rate in poverty neighborhoods had
dramatically declined by more than 50 percent in compari-
son with the 1966 figure.
The seven black-owned automobile dealerships (out
of a total of 30,000) are seven times as many as there
were 2 years ago. New black-owned banks are in forma-
tion in seven cities, and one recent study showed that in
certain areas of Harlem, black business ownership has risen
to 58 percent. Between 1960 and 1967 there was a 47 per-
cent increase in the number of blacks in white-collar posi-
tions, craftsmen and operatives the better jobs compared
to a 16 percent increase in the number of whites in such
joys.
The percentage of non-white persons enrolled in
school is higher in each age group than it was in 1960.
In central cities, the median years of school completed by
Negroes 25 to 29 years of age has increased by about one
year, and the proportion of this group completing high
school has risen from 43 percent in 1960 to 61 percent
in 1968.
The non-white maternity mortality rate in 1965
was 20 percent less than what it was in 1960 and less
than one-ninth of what it was in 1940. The proportion of
non-white households situated in housing that either is
dilapidated or lacks basic plumbing has decreased sharply
since 1960 in all areas, especially in large cities. Although
the number of non-white families living in poverty areas
in large cities has been fairly constant between 1960 and
1966, of the total number of non- white families the per-
centage living in such areas has declined sharply since
1960.
One fatal difficulty, however, undermines most of this seem-
ingly plausible case against the proposition that the disadvan-
taged condition of the Negro has been a significant cause of
ghetto violence. That is the failure to pay adequate attention to
the comparative economic condition of whites and Negroes,
and to make this comparison over a longer period of time
than the last few years. The lesson of history is not that pov-
erty as such causes violence, but rather that frustrations aris-
ing out of poverty can cause violence. There may often be
102 Report of the Task Force on Law and Law Enforcement
poverty but no frustration: the frustration is present only
when the disadvantaged person expects, or feels entitled to,
better material circumstances than those he is living under.
Increasingly, the black man in America has come to expect living
conditions on a par with those of the white man and has come
to believe that he is entitled to such equality.
These expectations that the economic gap between black
and white will be closed have stemmed in part from the Ne-
gro's experience of economic progress, and the frustration has
occurred because in the late 1950's and the early 1960's the
gap between black and white stopped narrowing and in some
respects began to widen.
One basic measure of the gap between black and white is
median family income. Figure 1 plots median family income
(total, white, and Negro) for the years 1950 to 1967. Exami-
nation of this Figure reveals that while median Negro family
income has risen steadily since 1950, the dollar gap between
white and Negro family income has also steadily increased in
nearly every year.
LOQol
7,000
6,000
5,000
-NEGRO
4,000
3,000
2.000
ii I I I l
1945 1950 1955 1960 1965 1970
Figure 1. Median family income total, white and Negro.
American Society and the Radical Black Militant 103
Figure 2 expresses median Negro family income as a percent-
age of median white family income. It indicates no significant
Negro progress in closing the gap between the years 1950 and
1965 but it does show a heartening upsurge between 1965
and 1967.
70%-?*
60%
50%
40%
30%
20%
10%
1950 1955 1960 1965 1970
Figure 2. Median Negro family income as a percentage of white family
income, 1950-1967.
In Figure 3 a further refinement of this analysis is intro-
duced. In that Figure the average family income for the total
population and for the non-white population has been divided
by the average years of schooling for each group, and the re-
sulting figure for the non-white population has then been ex-
pressed as a percentage of the resulting figure for the total
population. This percentage can be considered an "index of
non-white economic satisfaction": if blacks and whites with
the same amount of education were earning the same amount
of income, the index would be 100 percent and blacks would be
as satisfied economically as whites. Figure 3 shows that this
104 Keport of the Task Force on Law and Law Enforcement
is not the case, that the progress toward closing the gap be-
tween white and black stopped in the early 1950's, and that
the relative economic position of the Negro worsened over the
next 10 years. Only in the last few years has the gap begun
to close again, and still the index of non-white economic satis-
faction is below its high point in the early 1950's.
90%
80%
70% -
60% -
50%
1940 1950 1960 1970
Figure 3. Index of non-white economic satisfaction, 1940-1967.
The analysis in these three figures is confirmed by other
economic and social indicators. Thus, for example, although
the non-white unemployment rate in 1966 and 1967 was
the lowest since the Korean War, the ratio of non-white to white
unemployment remained roughly the same: two to one.
Although the school enrollment gap has narrowed for kinder-
garteners and 16- and 17-year-olds, it has widened for persons
in their late teens and early 20's, and proportionately more
whites are going on to higher education. (Obviously, if propor-
tionately higher percentages of non-white students do not con-
tinue on to college and graduate school, the relative gains of
Negroes in professional and skilled jobs of the past decade may
soon level off.) In 1940 the illegitimacy rate among non- white
women was 17 percent; in 1966 it had risen to 26 percent.
Between 1950 and 1966 the percentage of fatherless families
among Negroes rose by one-third while the percentage of father-
less families among whites remained substantially constant.
What these facts all add up to is that after a period of black
American Society and the Radical Black Militant 105
progress and rising expectations following the Second World
War, a slackening of progress occurred and, by many indicators,
the relative economic position of the Negro deteriorated over
the next 10 years. From defeated expectations of progress, and
an unsatisfactory condition to start with, frustration arises. It
was this frustration which has been one important cause both
of the recent ghetto riots and of the rising violence of radical
black militancy.
(4) The psychological cause. All men are born with drives
and needs which conflict with those of other human beings. In
all societies, parents, caretakers and authority figures of one
kind or another are charged with the responsibility of meeting
the child's basic needs and helping the young convert their
drive energy into skills and patterns of behavior which will
help them cope with the demands of an adult society. This is
the process of "socialization." Without satisfactory socializa-
tion, these energies may result in a variety of troublesome
forms of personal behavior, including self-destructive action
and unwarranted conflict and violence against people and
property.
When, however, the young are adequately developed and so-
cialized and are able to cope as adults, they enjoy a sense of
adequacy and security. Being able to cope and as a result re-
ceiving the respect and acceptance of significant peers is the
primary way an individual meets basic and man-made needs.
When members of a society experience satisfactory patterns of
socialization, a high level of peace and stability can exist in
families and the society without the use of physical force to
control individuals or groups.
The basic pattern of socialization running through the black
man's history in America has been the destructive, unsatisfac-
tory relationship of dependency and subordination vis-a-vis the
white man. In slavery the master functioned as a father, ruler
and god. The condition of total power in the master and total
powerlessness in the slave, with the master providing and regu-
lating the slave's most basic needs, resulted in an intense emo-
tional bond between the black slave and the white master. Over
time the values of the white master and of the slavery system
were often internalized by the slaves and transmitted from gen-
eration to generation under the continuing influence of the slav-
ery system. The myth of Negro inferiority and white supremacy
was widely and deeply ingrained into black man and white
man alike.
Under segregation and in the ghetto the same pattern pre-
vailed, although in a constantly weakening form. The clear
implication of segregation was still that whites were superior
106 Report of the Task Force on Law and Law Enforcement
and Negroes inferior, that the white man was the father and
the Negro, the "boy." But other social forces were now un-
leashed: even under the segregation system black dependency
on white power was sharply decreased in comparison with
slavery, and in the teeming racial ghettoes of the Northern
cities the old relationship of dependency became attenuated in
the extreme.
The widening "crack" in the pattern of forced dependency
was the beginning of the development of a positive black group
identity. Many blacks, as preachers, teachers, physicians, law-
yers and other professional service people, began to develop
skills which gave them a sense of adequacy and the capacity
to cope. In the South in particular, successful business com-
munities developed. Black youngsters were able to identify with
people like themselves in positions of leadership and respect.
Obviously the level of self-respect was limited by the implications
of a segregated system, but nonetheless it was of tremendous
value in enhancing black self-esteem. More among the black
masses were better able to earn enough money to take care of
their families and as a result were able to develop a sense of
personal adequacy. Involvement in two world wars and achieve-
ment in entertainment, athletics, and other areas, together with
the myriad effects of migration to Northern cities, began to
change the black American's image of himself. A more positive
sense of self began to replace the previous negative self -concept.
Black adequacy and competence is now built on more than
white approval. A significant number of black parents no
longer teach their children to accept white authority right or
wrong. On the other hand, many whites, now economically
more secure and better educated, no longer need or approve of
the scapegoating of blacks. The white majority is increasingly
transcending the limits of the old racial myths of America. In
short, the tie that bound the old socialization pattern of black
social, economic and psychological dependence on a dominating,
often oppressive white community is now breaking decisively
for the first time in American history.
With the destruction of the old socialization pattern and the
breaking of the dependency bond have come expected responses,
some constructive, some destructive. The painful social process
is in some ways analogous to the difficult period of adolescence
in the individual when the achievement of adult independence
often seems to the youth to require a destructive rejection, not
merely a quiet putting away, of childish things. Many militant
blacks who are now seeking a positive cultural identity and a
new pattern of black socialization also experience a "black rage"
against whites who seem to block this development by their
American Society and the Radical Black Militant 107
unwillingness to "get off the back" of the striving black man. In
the case of the black radicals, this rage is expressed in aggres-
sive violence against the newly vulnerable symbols of white
authority such as the police.
The breaking of the dependency bond, acceptance of black-
ness as a positive value, and a sense of outrage is an energizing,
explosive set of psychological developments for the rising gen-
eration of militant blacks. The black American often experi-
ences intense and ambivalent feelings as a result and is con-
fronted with numerous questions and conflicts. Should he at-
tempt to become a part of the mainstream of his society now
changing but once so abusive and rejecting or is he obliged to
retaliate or reject it? Does manhood require retaliation, rejec-
tion or even violence? Can he trust what he sees as a white
America which has never before demonstrated itself trustworthy
with regard to recognizing and protecting the human rights
of black Americans ?
The new feeling among blacks sometimes results in a loss
of self-control after "trigger Incidents" (reflecting the old pat-
tern of white superiority and black helplessness) with attend-
ant burning of property and other acts of violence. With a
temporary breakdown in personal control, some blacks loot and
plunder the "symbolic enemy." This reaction is not one that
is found only among a small "riff-raff" who are sometimes
thought to be responsible for urban riots. Studies of participa-
tion in the 1967 riots have found that (1) a substantial minor-
ity, ranging from 10 to 20 percent, participated in the riots;
(2) one-half to three-quarters of the arrestees were employed
in semi-skilled or skilled occupations, three-fourths were em-
ployed, and three-tenths to six-tenths were born outside the
South; and (3) individuals between the ages of 15 and 34 and
especially those between the ages of 15 and 24 are most likely
to participate in riots.
In the one-to-one black-and-white relationship where mutual
respect exists and where interaction occurs on a personal
rather than symbolic level, constructive interaction between the
races is less difficult, perhaps more so than ever before. It is in
his abstract role as the symbolic enemy that the white man is
anathema to some radical black militants. Disturbingly, this
symbolic perception of whites has filtered down to youngsters,
sometimes as young as three or four years of age. Just as
young members of the Klan and other children of the "white
ghetto" are taught that it is permissible to abuse blacks, some
young blacks are now being taught that it is permissible to
abuse whites in particular, white policemen (or "pigs" in
radical argot).
108 Report of the Task Force on Law and Law Enforcement
The energy released by America's rejection of the old racial
pattern and the development of a positive group concept among
blacks is profound. If channeled, it can be a powerful force
for black community development, pride and constructive
change within the present social system. But if it is to be chan-
neled and if new, healthy patterns of socialization among blacks
are to replace the old pattern of white superiority and black
subordination, then it must be clear to blacks that support of
the society's institutions and peaceful participation in them is
in the interest of justice for the black masses.
Constructive attitudinal and economic changes have been
made. In many places, members of the white majority have
shown an unprecedented interest in facilitating black entrance
into the mainstream of American life. The interaction is estab-
lishing new and more healthy ground rules for black-and-white
relations. But often the complex factors related to emergence
from a dependent, despised position to full participation in the
society are often neither well understood nor subject to control
in the short run. Thus the black man's passage to full dignity
and well-being in America has been, and will continue to be,
marred by violence and destruction as well as by constructive
action and positive social change.
RESPONSES TO RADICAL BLACK MILITANCY
What are the principles which should guide the nation in
dealing with the problem of radical black militancy? What are
the policy implications of our analysis of the nature and causes
of this phenomenon?
First: because radical black militancy is a highly com-
plex phenomenon, with many different causes, no unbal-
anced, one-dimensional solution is possible whether it be
a program of intensified law enforcement or a program of
expanded social reform.
Our analysis of radical black militancy has been an effort
both to see this pehnomenon in the perspective of the larger
militant movement and to uncover the different kinds of fac-
tors which have operated to produce a commitment to illegal
violence on the part of a small but significant element in the
black community. We have seen that the radicals' destructive
notions of "self-defense" or guerrilla warfare are often inter-
woven with constructive ideas in the areas of politics and cul-
ture. We have seen that in the rise of radical black militancy
there has been a strong political factor the new black radical
leaders who have emerged following the failure of the society
American Society and the Radical Black Militant 109
to respond adequately to the civil rights movement in the mid-
1960's; there has been an ideological factor the spread of rev-
olutionary "anti-colonial" propaganda; there has been an eco-
nomic factor the frustration bred by living conditions in the
racial ghettoes; there has been a psychological factor the vio-
lent emotions unleashed as blacks break out of their dependent
position. Moreover, underlying all these elements has been the
historic institutional legacy of white supremacy and black sub-
ordination which has decisively shaped the Negro experience in
America, including the recent emergence of a virulent radical
black militancy.
In the face of complexities of this magnitude, it is impossible
to believe that any one-dimensional package of solutions can
effectively meet the problem of radical black violence. Improved
law enforcement can undoubtedly deter and apprehend some
radicals who engage in illegal violence but the policeman and
the judge have little power to check the spread of an ideology,
to improve economic conditions or to alleviate psychological
pressures. Vigorous efforts to secure the political rights of Ne-
groes and accelerated social reforms in employment, education
and housing can undoubtedly open the doors of opportunity
and constructive citizenship for increasing numbers of blacks
who might otherwise be tempted to violence but in the short
run incendiary leaders, violent ideologies and black rage can
prove dismayingly unresponsive to well-meaning programs of
social and political reform. Radical black militancy is not a one-
sided problem and it does not admit of one-sided solutions.
Second: because radical black militancy is, like urban
rioting, a phenomenon deeply rooted in the enduring leg-
acy of white supremacy and Negro subordination, we must
continue and intensify our national commitment to secure
the full and equal inclusion of black citizens into all as-
pects of American life.
In order for there to be a remission in the cancerous growth
of black violence, we must have unprecedented national action
in support of the goal of black dignity and equality. Today's
violent racial outbursts and race hatred are the outgrowth of
fundamental attitudes, customs and institutions both white and
black that have worked their way into our society for cen-
turies. Today we reap what we have sown. We need action
in the words of the Kerner Commission, "compassionate, mas-
sive and sustained, backed by the will and resources of the most
powerful and richest nation on this earth" to create quickly,
as a nation, what we as a nation have destroyed through cen-
110 Report of the Task Force on Law and Law Enforcement
turies of slavery and segregation: the necessary preconditions
for equal black participation in American life.
The movement to secure the inclusion of black citizens in
all aspects of American life must be continued and intensified.
In particular, obstacles must be removed which block the oppor-
tunities for duly elected rather than self-appointed black lead-
ers to enter into the political process and to seek to advance
the interests of their constituencies. The demand of local black
communities for greater control over decisions that affect them
and for "self-determination" is not inconsistent with the fun-
damental goal of inclusion. Rather, this demand is consistent
with the historic commitment of the United States to democratic,
local decision-making, as well as with the realities of the process
by which other minority groups have made their way into the
mainstream of American life. Unless the political rights of the
"inner city" are respected and new local government structures
are found under which these rights can be exercised, then radical
black militancy will continue to attract more and more Negroes
at the expense of the goal of peaceful inclusion of black and white
in a single society functioning according to universally accepted
political processes.
Third: because radical black militancy is a powerful
ideological force among Negroes in the lower socio-economic
brackets, the efforts which must be made to control the
violence of black radicals must also involve attention to the
effect of such efforts on the legitimacy of the existing so-
cial order.
The radical black militant who attacks a policeman or bombs
a college building is not simply a common criminal. He is in-
deed a criminal, but he is different from the burglar, the robber
or the rapist. He is acting out of a profound alienation from
society. He believes that the existing social and political order
in America is not legitimate and that black people in America
are being held in "colonial bondage" by "an organized imperial-
ist force." Thus he is able to interpret his act of violence not
as a crime but as a revolutionary (or "pre-revolutionary") act.
As an isolated occurrence, this distorted interpretation would
not be significant but the interpretation is sustained by an
articulated ideology that is today competing with traditional
American values for the minds and hearts of the rising gener-
ation of black ghetto residents.
Whenever the police illegally harass a radical black militant
leader, whenever the courts fail to accord such a person equal
justice under law, whenever political leaders advocate indis-
American Society and the Radical Black Militant 111
criminate suppression of all expressions of discontent, then the
anti-colonial ideology gains new adherents: new proof appears
to have been given that the social order in the United States
is inherently and unalterably oppressive of the black race. On
the other hand, when leaders of undoubted goodwill and de-
cency vacillate in the condemnation and control of unlawful
black violence because of the grievances underlying it, or when
responsible authorities minimize or conceal the seriousness of
the violent crime problem among ghetto Negroes so as not to
be "racists," then such leaders seem to admit that the social
order is so burdened with an ineradicable "guilt" as to be al-
most unworthy of preservation : this too feeds revolutionary vio-
lence. To deal effectively with the developing ideology of radical
black militancy, we shall have to have able and effective leaders,
skilled in the practice of statecraft, who will energetically
strengthen, and not impair, the legitimacy of the institutions
for whose preservation and improvement they are responsible.
Fourth: because radical black militancy is but one
highly visible aspect of our total racial problem, uncom-
mon courage and compassion will be required of the Amer-
ican people if the necessary steps toward solution are to
be taken.
America's racial problem, of which radical black militancy is
but one highly visible aspect, is grave and deep. It may be, how-
ever, that today we as a nation understand for the first time
the full, terrible dimensions of this problem and what it has
done to our people, both black and white. Perhaps we realize
that its solution will require far more of us than merely to
recover old values or to improve on old techniques. Perhaps
we now see that racial peace and justice will require us, white
and black alike, in fact to transcend our whole history to
create, often painfully, new institutions, new customs, new at-
titudes, in which the old self -validating judgment of white
supremacy and black inferiority will be finally superseded.
Uncommon courage and compassion will be required from
all our people if this challenge is to be met. We must all do
what is right because it is right not in the vain hope that it
will quickly put an end to violence. A nation does not easily
find its way out of a problem of this magnitude: we shall have
to have the courage and the compassion to try and fail and try
again, to see it through, to hold together, until we finally be-
come, for the first time, one society, black and white, together
and equal.
112 Report of the Task Force on Law and Law Enforcement
SOURCE NOTE
This chapter is an effort at synthesis and evaluation of materials on
contemporary racial violence contained in the reports of other Task Forces of
this Commission and in the Report of the Kerner Commission; it is not
based to any significant degree on original research by the Task Force on
Law and Law Enforcement. The principal sources are : Graham and Gurr,
Violence in America, Historical and Comparative Perspectives, Report of
Task Force on Historical and Comparative Perspectives on Violence in
America, Ch. 11 "The Dynamics of Black and White Violence" (Comer),
Ch. 9 "Black Violence in the 20th Century: A Study in Rhetoric and
Retaliation" (Meier and Rudwick), and Ch. 19 "The J-Curve of Rising
and Declining Satisfactions as a Cause of Some Great Revolutions and a
Contained Rebellion" (Davies) ; Skolnick, The Politics of Protest, Report of
Task Force on Violent Aspects of Protest and Confrontation, Ch. IV
"Black Militancy"; Report of the National Advisory Commission on Civil
Disorders, Mar. 1, 1968, particularly Part II ("Why Did It Happen?") ;
also, One Year Later: An Assessment of the Nation's Response to the
Crisis Described by the National Advisory Commission on Civil Disorders,
Mar. 1, 1969, prepared by Urban America Inc. and The Urban Coalition.
CHAPTER 6
THE RESPONSIVENESS OF
LOCAL GOVERNMENT*
The growing discontent with American local government goes
beyond an occasional desire to "vote the rascals out" and is in-
creasingly focused on the basic structure and procedures of local
government. This disaffection takes two forms stressing one or
the other of the two basic sets of expectations toward govern-
ment: that government will be (1) effective and (2) accountable.
The former expectation is being emphasized by those groups, pre-
dominantly middle and upper class, whose fundamental concern
is the cost-effectiveness of local government. The latter desire for
accountability of local government officials reflects the wide-
spread feeling among the young, the old, the poor, and especially
the black and Spanish-speaking minorities, that local government
not only fails to produce what they want, but also, and more
importantly, even to listen.
Out of these two categories of disaffection from local govern-
ment, two agendas for reform are being articulated. One, much
in the tradition of the earlier muncipal reform movement,
stresses the need for metropolitan government, with clear
powers to coordinate efforts to overcome problems such as envir-
onmental pollution, land use and transportation planning. The
other agenda for local government reform calls for inner city de-
centrjalization to give a greater opportunity for citizen partici-
pation in those affairs most closely affecting ghetto residents:
law/enforcement, education, housing, and municipal services of
^various types.
Although these two agendas for reform appear to be in con-
flict with each other insofar as one calls for greater centraliza-
tion and the other for greater decentralization more careful
comparison of the two reveals complementarity. The difference
is rather one of emphasis, stemming from the different .attitudes
and environments peculiar to each set of reformers. Moreover,
* This chapter was prepared by Jon Ellertson, Department of Political
Science, Massachusetts Institute of Technology.
113
114 Report of the Task Force on Law and Law Enforcement
past experience with municipal reform indicates the practicality
of the two groups working in common to effect a coalition to
accomplish their respective goals.
Both categories of disaffection are being expressed in demon-
strations, typified by the taxpayers' revolt on the one hand, and
welfare sit-ins on the other. The demands for greater participa-
tion, if frustrated, are more likely to lead to violence than frus-
tration of the demands for greater effectiveness. The frustration
of the metropolitan reformers may intensify, to be sure, but this
set of reformers has a much stronger sense of personal effective-
ness, a sense that the political system is open to their influence
in general, although perhaps not to their particular reform
measures. As a result, they can continue to channel their frus-
trations and dissatisfactions through the conventional means of
influence.
The other set of dissidents, on the contrary, represents a con-
sitituency which has a low sense of political efficacy. This sense of
futility promotes withdrawal from the conventional channels
of political influence (for them largely non-existent in any
meaningful sense) only to erupt sporadically in violence. Recent
research confirms that riot-prone citizens have a lower sense of
political efficacy than do demonstration-prone individuals. 1
The search for responsive local government by these two
groups is of critical concern since "some sort of claim to ulti-
mate responsiveness has come to replace custom or religious
belief as the legitimating grounds for popular support and obedi-
ence." 2 A rapid and dramatic effort to satisfy the demands
for increased responsiveness of local government seems necessary
for the effective maintenance of public order in our cities.
THE SHORTCOMINGS OF THE MUNICIPAL
REFORM MOVEMENT
When it was initiated in the last century, agitation for reform
sought to improve local government's responsiveness both in
terms of efficency and accountability. Basically the goal was to
make government more consistent with the predominantly mid-
dle-class White Anglo-Saxon Protestant values of the reformers,
which included a frankly patronizing attitude toward the prob-
lems of the lower classes. The agendas for reform, therefore, in-
cluded an elimination of the graft and incompetence of the "spoils
system" in general, and the urban political machine in particular,
as well as various benefits for the poor. Two principal goals
were to make the "business of local government" more compe-
tent, and to "reduce the impact of partisan, socio-economic
cleavages on governmental decision making, to immunize city
The Responsiveness of Local Government 115
governments from 'artificial' social cleavages race, religion,
ethnicity, and so on." 3
One of the reformers' guiding assumptions was that it was
possible to identify a general interest, the so-called "public in-
terest," which applied to the city as a whole and which should
prevail over competing "partial interests." Toward this end,
the ward basis of representation to city councils gave way, in
many cities and towns, to an "at large" system. Political parties
at the municipal level were believed to be unnecessary and
actually pernicious. Instead, the municipal reform ideal placed its
faith in a bureaucratic, rather than political, process for the
identification of the "public interest." As Edward Banfield and
J. Q. Wilson have described this ideal, the solution "was to put
affairs entirely in the hands of the few who were 'best qualified,'
persons whose training, experience, natural ability, and devotion
to public service equipped them best to manage the public busi-
ness." 4
By denigrating partisan politics and weakening the party
machine, the reformers inadvertently reduced the responsive
capability of local governments vis-a-vis important minorities.
Moreover, according to Theodore Lowi, this decline of the
political machines was matched by the development of "New
Machines," professionally organized autonomous career
agencies. 5 Urban bureaucracies, writes Lowi, "are relatively
irresponsible structures of power. That is, each agency shapes
important public policies, yet the leadership of each is relatively
self -perpetuating and not readily subject to the controls of any
higher authority." As a consequence, the modern city is efficiently
run, but poorly governed due to the existence of
islands of functional power before which the modern mayor
stands improverished. No mayor of a modern city has pre-
dictable means of determining whether the bosses of the New
Machines the bureau chiefs and the career commissioners
will be loyal to anything but their agency, its work, and
related professional norms. . . . The New Machines are
Machines in that the power of each, while resting ulti-
mately upon services rendered to the community, depends
upon its cohesiveness as a small minority in the vast dis-
persion of the multitude. 6
Many among this powerless "multitude" are the poorly edu-
cated lower-class minorities who are excluded from participa-
tion in these "New Machines" because of the establishment of
"merit" criteria for job selection. The "New Machines" are there-
fore insulated both from authority above and from penetration
below.
116 Report of the Task Force on Law and Law Enforcement
Thus the urban bureaucracies have not lived up to the re-
formers' expectations of responsiveness. The inability of mayors
to coordinate the relatively autonomous functional subcenters of
power contributes to the feeling of many that urban priorities
are jumbled and often inconsistent. The functional decentraliza-
tion of authority has increased the efficiency of government
in dealing with the specific activities around which each bureauc-
acy is organized, to the neglect of "those activities around which
bureaucracies are not organized or those which fall between or
among agencies' jurisdictions." In the latter cases, "the cities are
suffering either stalemate or elephantitis an affliction whereby
a particular activity, say urban renewal or parkways, gets pushed
to its ultimate success totally without regard to its balance
against the missions of other agencies. In these as well as in
other senses, the cities are ungoverned." 7
Nor do many citizens have easy access to these new sources
of autonomous power, either indirectly via the mayor or council-
men, or directly for the redress of grievances. Indeed, attempted
access by groups of urban residents constitutes "political inter-
ference" in the terminology of the municipal reform movement.
Dissatisfactions are generated which remain unresolved in the
absence of channels for the expression of needs and demands.
In sum, the municipal reform movement, which sought to make
local government more responsive, inadvertently promoted struc-
tural changes which in fact reduced responsiveness to the in-
terests of certain groups. Nonpartisanship eliminated some artic-
ulation channels. By divorcing technical competence from polit-
ical accountability, the reformers overlooked the necessity to
mediate and balance demands for the application of that tech-
nical competence. The assumption that "there is no Democratic
or Republican way to pave a street" neglects the need to decide
which streets will be paved and which not, given the inevitability
of scarce municipal resources.
Of cource, allocation of scarce resources is not a problem if
everyone agrees that, in the public interest, there is only one
optimum solution. Where reformed local governments do serve
relatively homogeneous communities, they retain their quality of
responsiveness and legitimacy :
Winnetka [is] a suburb of Chicago the residents of which
are almost all upper-middle-class Anglo-Saxon Protestants.
Winnetkans are in fundamental agreement on the kind of
local government they want: it must provide excellent
schools, parks, libraries and other community services and
it must provide them with businesslike efficiency and per-
fect honesty. Politics, in the sense of a competitive struggle
for office or for private advantage, does not exist. . . . [T]he
The Responsiveness of Local Government 117
civic associations agree upon a slate of those 'best quali-
fied to serve' which the voters ratify as a matter of course.
Members of the city council leave 'administration' entirely
in the hands of the city manager. 8
The greatest shortcomings of the reform movement are in the
large cities which wholly lack such homogeneity of interests
and which contain a number of quite different lower-class con-
stituencies.
Although considerable scholarly debate exists as to the rela-
tive advantages and disadvantages of the machines and the
reform movement, a recent analysis by Greenstone and Peterson
concludes that
both the machine and the reform movement had conserva-
tive consequences. For businessmen 'on the make/ machine
politics provided franchises and special privileges. For their
better established successors good government seemed both
efficient and morally praiseworthy. The machine controlled
the lower-class vote, while somewhat later the reformers'
structures reduced it. By drastically reducing party com-
petition each protected vital business interests from signifi-
cant political interference. 9
Greenstone and Peterson also note that following World War I,
the social conscience of the reform movement was conspicuously
absent, and reform focused more on corruption than on social
ills and the needs of the lower classes. 10
THE MOVEMENT FOR CITIZEN PARTICIPATION
AND COMMUNITY CONTROL
As this neglect of their interests has been perceived by mem-
bers of the inner city lower classes, some have been motivated
to join the middle classes in the move to the suburbs to escape
from their dissatisfaction with irresponsive big city govern-
ment. But those minorities prevented by poverty and discrimi-
nation from exercising that option have been developing their
own distinct municipal reform agendas.
These new agendas for reform stress the growing desire of
inner city residents to have a form of local government which is
as responsive to their expectations about the education of their
children, the protection of their values, and the provision of
services as they perceive a typical suburbanite's government is.
The experience of many residents, in the black community in par-
ticular, with the large service bureaucracies has taught them that
the desired degree of responsiveness, particularly accountability,
can only be acquired through some sort of decentralization and
118 Report of the Task Force on Law and Law Enforcement
increased citizen participation in local government. More and
more, the consensus is, "We'd rather do it ourselves."
This desire for more citizen participation grows out of a com-
bination of increased positive self -awareness and dignity on the
one hand, and increased frustration in attempting to deal with
local officials on the other. The underlying motivation is the
quest for equality. Having been denied equal sreoprraphic mobility
because of poverty and "suburban separatism," n many black
Americans have turned toward a ghetto control and trans-
formation strategy. The demand for citizen participation has
also received impetus from the various federal urban renewal
programs specifying that local planning agencies are to pro-
vide for citizen participation. Under the anti-poverty legislation,
moreover, the symbol of participation was elevated by the clause
providing for "maximum feasible participation" of the poor.
Since its appearance, some self-assertive individuals have given
the clause a "radically transformed construction which drops the
'feasible' and reads 'participation' to mean 'control.' " 12
Just as "maximum feasible participation" provided sufficient
ambiguity to cover divergent opinions, the term "community
control" 13 gives rise to different understandings. For some,
it is an enhanced advisory role in certain city agencies. For
others, it means complete separation from City Hall. The distri-
bution and strength of these interpretations of the demand for
greater participation undoubtedly differs from city to city. There
seems to be no single model for implementation of these ideals,
although the evidence of lack of consensus in the ghetto is prob-
ably strongest in the minds of "outsiders" who are neither privy
to neighborhood meetings nor take advantage of reading the
black community press. The unmistakable thrust of the demands
for citizen participation and community control is a decentraliza-
tion of authority. 14
THE MOVEMENT FOR MODERNIZATION
AND CONSOLIDATION
This emphasis provokes a predictably negative reaction from
many Americans, including some heirs of the municipal reform
movement (many of whom enjoy suburban residence). Their
concern about local government has recently focused on the exces-
sive fragmentation of local jurisdictions, both functional and
geographic. Their agendas seek to make local government more
responsive through coordination and consolidation. Much of
the sentiment behind these reforms reflects middle- and upper-
class reluctance to pay taxes which cannot be efficiently used.
Cost effectiveness is the emphasized criterion.
The Responsiveness of Local Government 119
These reformers likewise see the need to "modernize" the
business of government, which has become outmoded because pop-
ulations and problems have spilled beyond old jurisdictional
boundaries. Urban problems, in this view, are metropolitan prob-
lems : environmental pollution, transportation and land-use plan-
ning. Some who see the necessity of creating larger, metropolitan
jurisdictions also envision solutions to the inequities of municiDal
finance with the accompanying problems of equity in housing,
education, and related services which strain inner city coffers
and lead to civil unrest.
An important example of this category of local reform
sentiment is the 1966 statement by the Committee for Economic
Development, which made the following assessment:
(1) Most local government units are too small to pro-
vide effective and economical solutions to their problems;
(2) Extensive overlapping layers of government cause
confusion and waste the taxpayers* money;
(3) Popular control over local government is ineffective
because of the excessively long ballots and the confusions
caused by the many-layered system of government;
(4) Policy leadership is typically weak, if not nonex-
istent ;
(5) Archaic administrative organizations are totally in-
adequate to the functional demands made upon them ; and
(6) The professional services of highly qualified person-
nel are typically not attracted to local government. 15
The CED report concluded that the most pressing problem
of local government in metropolitan areas is the "bewildering
multiplicity of small, piecemeal, duplicative, overlapping local
jurisdictions" which are unable to cope with the difficulties of
managing modern urban affairs. "The fiscal effects of duplicative
suburban separatism create great difficulty in provision of costly
central city services benefiting the whole urbanized area. If local
governments are to function effectively in metropolitan areas,
they must have sufficient size and authority to plan, administer,
and provide significant financial support for solutions to area-
wide problems." 16
The CED assessment has been echoed and expanded by the
more recent Report of the National Commission on Urban Prob-
lems, popularly known as the Douglas Commission. Although
much more comprehensive, the Douglas Commission's recom-
mendations for "Modernizing Urban Government Structure" 17
seem to emphasize the same interpretation of responsiveness. At
the same time, the Douglas Commission recommendations stress
more clearly than the CED that a reduction of fragmented
authorities would enable responsibility to be fixed at a focal point
120 Report of the Task Force on Law and Law Enforcement
from which coordination and balance in priorities can be made
and efficiently executed. Moreover, the Douglas Report is more
realistic about the obstacles to reform and cognizant that differ-
ent kinds of improvements could result from "changes that fall
short of the comprehensive amalgamation of all local govern-
ments in each metropolitan area." 18
Like the CED statement, the Douglas Report places less em-
phasis on the need to meet the widespread demand for greater
citizen participation although both do recognize these demands
in a number of their proposals. Both tend to stress, however, the
deconcentration of authority from city hall, rather than the
devolution of authority an important distinction obscured by
use of the word "decentralization." Deconcentration is "the
delegation of authority adequate for the discharge of specified
functions to staff of a central department who a^^ situated out-
side the headquarters," 19 a notion which is inherent in the
Commission's proposal for neighborhood city halls. Devolution,
on the other hand, is "the legal conferring of powers to dis-
charge specified residual functions upon formally constituted
local authorities," 20 an idea recognized in the CED proposal
for neighborhood councils and in the Majority report of the
Douglas Commission 21 but more strongly emphasized in the
Douglas Commission Minority Report. Decentralization em-
braces both of these processes of structural adaptation, though
the latter is significantly different in promising greater poten-
tial subunit autonomy.
Designed to serve 25,000 to 50,000 residents, the neighborhood
city halls envisioned by the Douglas Commission are expected to
help fulfill what the Commission called "the great need for a feel-
ing of participation in decisions by the neighborhood residents
whom the decisions will affect." 22 But the Majority Report con-
veys considerable ambiguity about what types of citizen partici-
pation ought to be allowed. On the one hand, there is a concern
for "reaching the more disaffected, inactive members of a com-
munity," 23 for providing, though the neighborhood city hall, "an
office to entertain citizen complaints and problems." 24 On the
other hand, the Majority Report makes it clear that these new
offices are intended primarily to provide service assistance to
the "unsophisticated" welfare recipient, not a podium for "angry,
organized citizens protesting the location of a new school, the
demolition for an urban renewal project, the rerouting of a
sewer line, or the laying down of a freeway." 25 Citing the
experience of the OEO Community Action Program, the Majority
adds the warning that "trying to institutionalize protest under
the very auspices of city government will not succeed." 26
The Majority Report consequently responds rather cautiously
The Responsiveness of Local Government 121
to the demands for greater citizen participation. It does advise
that some devolution of power to the neighborhood level may be
permitted, such as
the power to make or direct the making, of small neigh-
borhood improvements. Examples are addition of more trash
receptacles, minor repairs to public property, and tree and
flower planting. Still more popular would be better lighting
of streets and alleys, more frequent trash pickup, stop signs
at certain intersections and so on. ... This is the kind of
small improvement that is easily made, but which unsophis-
ticated residents simply do not know how to obtain. 27
The Majority Report suggests, optimistically, that this minor
concession to demands for greater resident involvement "would
cost the city little but would enlist the immediate enthusiasm
of the residents. . . . Slight as it seems, the knowledge of area
residents that they have an accesible means of affecting their
own immediate environment can have a multiplier effect on
citizen self-confidence and involvement." 28
This discussion by the Douglas Commission majority is a
recognition of the idea, familiar to political science, that suc-
cessful influence attempts increase the individual's sense of polit-
ical efficacy. It remains to be demonstrated, however, that such
small successes could indeed reverse the strong feelings of futility
conditioned by ghetto life. Although small victories may win
wars, many who are restless and dissatisfied with the current
non-responsiveness of local government would not consider the
suggested "participation" of sufficient salience to warrent in-
volvement. Instead, such suggestions are likely to be spurned
as merely "token", as of no importance in comparison with other
concerns, such as education, police-community relations, employ-
ment, or housing.
The overriding issue, which is noted by the Minority Report,
is the issue of equality of political expression :
Even with a thorough-going metropolitan area plan of gov-
ernment, there are many functions that will still reside with
the small communities in the suburban areas. It seems
logical, then, that certain similar functions should reside
with inner city communities. This, then, would mean that
the taxpayer and voter in the inner city of a metropolitan
area would have the same kind of leverage on the policies
that affect his neighborhood growth, redevelopment, or
maintenance, as his fringe area counterpart. 29
In this sense, the demands for greater citizen participation are
really demands to eliminate a double-standard in American local
122 Report of the Task Force on Law and Law Enforcement
politics a paternalistic bias which is sometimes perceived as
an attempt by the dominant majority to relegate low-status
minorities to a subject role in society.
POLITICAL EFFICACY AND TRUST
The demands for increased citizen participation in the gov-
ernment of large American cities are consistent not only with
popular conceptions of democracy, but also with recent social
science findings which strongly suggest that accession to these
demands would reap large dividends to society as a whole, par-
ticularly at the local level. The key findings of current thinking
from political and social sciences are that the perception of per-
sonal effectiveness in politics, or "political efficacy," is related
to satisfaction with government and that a strong sense of politi-
cal efficacy seems to be necessary to motivate persons to express
their demands in conventional, nonviolent modes.
Individuals who feel ineffective in using the conventional
modes of political action are likely to seek alternative channels
for the expression of needs. Lacking the opportunity to enjoy
occasional success in the conventional channels of influence, they
seek success through more militant channels. These channels may
may in turn contribute to a sense of revolutionary effectiveness.
Ultimately, the sense of effectiveness in using any mode of politi-
cal expression depends on the degree of success which an indi-
vidual experiences.
Since society denies the legitimacy of violent channels of in-
fluence, it must at the same time strengthen the conventional
channels so as to promote the feeling that the system is being
responsive to every conscious group of interests in the political
system. The blockage of demands will not obliterate them, but
rather "transform what might have been a pacific continuous
flow of demands into a spasmodically violent, eruptive one." The
tendency for demonstrations, mass rallies, and riots to be impor-
tant channels for expressing and communicating demands will
be strengthened if such blockage persists. 30
"Channel blockage," or the perception of such obstacles to
political expression, hinders the development of a sense of
political efficacy the "belief that political and social change
can be effected or retarded and that [one's] efforts, alone or in
concert with others, can produce desired behavior on the
part of political authorities." 31 The elderly, the poorly educated,
and the depressed minorities, notably Negroes, are more likely
to lack this important sense of political effectiveness.
The feeling of political inefficacy particularly describes per-
ceived isolation from the "input" channels to the political system.
The Responsiveness of Local Government 123
The related component of political alienation is cynicism, or
lack of trust, the sense that the "outputs" or policies of govern-
ment neglect the individual. The distinction becomes important
because a recent study suggests that those who "participate" in
unconventional fashions demonstrating and rioting share a
strong cynicism, but that demonstration-prone individuals are
more likely to have higher feelings of political efficacy than
riot-prone individuals. 32
These two aspects of the alienation syndrome are, of course,
related to each other. In general, persons who have a high sense
of political efficacy are less likely to be cynical about politicians
and the political process. This relationship, however, does not
hold where local politics are dominated by a political machine.
In Litt's study of Boston, 33 where the legacy of past machine
control is still sensed, no matter how efficacious persons felt
about political action, they still did not trust politicians. On the
other hand, Litt found the expected direct relationship between
political trust and efficacy in surrounding Boston suburbs. Litt's
findings thus suggest that a restoration of the urban political ma-
chine would not reduce this sense of alienation.
The citizen-bureaucrat interface is often a locus of critical
political learning, or socialization, which can either promote
or reduce feelings of alienation. Ronald Lippitt provides an
everyday example of the unfortunate informal negation of a
formal civics lesson :
Socialization decision: The city council has before it a
proposal from two of the council members to establish a
city youth council which would have on it representatives
from all youth-serving programs including agencies, school
systems, churches, etc. It was also proposed that the chair-
man of the youth council should sit ex officio on the city
council as a linkage or liaison between "youth affairs" and
"city affairs." After much wrangling and hassling, the idea
was changed considerably to an invitation to all student
councils and other youth groups to send representatives
as observers to city council meetings to "learn how the city
does its work" so that they could help the young people
understand city affairs.
Socialization action: A letter from the mayor went to all
the grouDs were quite desultory, and the members se^mod
Socialization consequences: The discussions in most of
the groups were quite desultory, and the members seemed
uninterested. In a few groups there were active discussions
which usually focused on the theme "Who wants to sit and
be an observer? Why don't they trust us to meet and think
about what ought to be done to improve things like delin-
124 Report of the Task Force on Law and Law Enforcement
quency and drinking in town and to make recommendations
to the city council for things that ought to be done?" Very
few representatives turned up as observers at the council
meetings. A few council members noted this circumstance
and felt it confirmed their belief that "the young people
aren't interested in this kind of thing." Others didn't even
remember the invitation. 34
That political attitudes are re-inforced or weakened by the
quality of informal contacts with officials suggests that the
selection, training, and promotion of local civil servants who deal
with the public should give recognition to qualities of rapport and
personableness. "Merit" is not just technical competence.
The critical need to promote feelings of trust and self-con-
fidence in approaching political institutions and personnel is
tragically manifested in outbreaks of violence. Survey data on the
sense of political efficacy collected by the Survey Research Center
since 1952 show a disturbing trend since I960. 35
Political Efficacy
[In percent]
1. People like me don't have any say about what the government does.
1952 1956 1960 1964 1966 1968
Agree 31 28 27 29 34 35
Disagree _ 68 71 72 70 60 63
DK (depends) 111162
100 100 100 100 100 100
2. Voting is the only way that people like me can have a say about how
the government runs things.
1952 1956 1960 1964 1966 1968
Agree 81 73 73 73 69 55
Disagree 17 25 25 26 26 43
DK (depends) _ 222152
100 100 100 100 100 100
3. Sometimes politics and government seem so complicated that a person
like me can't really understand what's goiii^ on.
1952 1956 1960 1964 1966 1968
Agree 71 64 59 67 70 67
Disagree . 28 36 41 32 26 30
DK (depends) 1 * * 1 4 3
100 100 100 100 100 100
4. I don't think public officials care much what people like me think.
1952 1956 1960 1964 1966 1968
Agree 35 27 25 37 35 43
Disagree ___ 63 71 73 61 56 50
DK (depends) 222297
100 100 100 100 100 100
Source: Survey Research Center; 1968 data from the Harris poll pre-
pared for the Violence Commission.
The Responsiveness of Local Government 125
Particularly distressing is the trend of responses to the ques-
tion, "I don't think public officials care much what people like me
think" (item 4). Since about 1960, an increasing number of
respondents have agreed with that statement, indicating a
particular source of the feeling of isolation from government. A
perhaps encouraging countertrend is the growing feeling that
there are alternatives to voting for the expression of individual
sentiments (question two). The data do not allow a determina-
tion, however, of which alternative channels of communication
the respondents had in mind conventional letter writing, or
non-conventional protest such as demonstrations, even violence.
Robinson, Rusk, and Head at SRC concluded on the basis of these
and related data that "common conditions or events could be said
to be causing people to be less trustful of the government (or
how it is run) and also less sure of their own effectiveness in
influencing the course of governmental actions." 36 They add
that the manifestations of these feelings of political cynicism and
inefficacy on the part of large segments could be either with-
drawal from the political system entirely or revolt against it.
In either case, domocracy would be the loser. 37
EFFICACY, TRUST AND CITIZEN PARTICIPATION
The feelings of political efficacy and trust which contribute to
political allegiance can be fostered by increasing the responsive-
ness of local government. The alienation syndrome need not
suggest a personal pathology, but rather a malfunctioning of
the political system. It is important that the system institu-
tionalize responsiveness by assuring free and open access to
those political channels deemed legitimate and "proper" by the
political culture. 38
The "capillary" structure of democracy, to borrow an analogy
from Almond and Verba, is a useful one if we do not press it
too far. The great secondary components of the democratic in-
frastructure political parties, interest groups, and the media
of communication are analogous to the veins and arteries of a
circulatory system. Unless they are connected effectively with the
primary structure of community family, friendship, neighbor-
hood, religious groups, work groups, and the like there can be
no effective flow of individual impulses, needs, demands, and
preferences from the individual and his primary groups into the
political system.
The overwhelming majority of the members of all political
systems live out their lives, discover, develop, and express their
feelings and aspirations in the intimate groups of the community.
Where the primary structures remain outside the polity or are
126 Report of the Task Force on Law and Law Enforcement
passive objects of the polity rather than active participants
within it, then the individual has only three choices: to fully
involve himself in politics, withdraw from it, or become a passive
object of it. 39 When there is an adequate development of secon-
dary structures for the articulation and aggregation of political
sentiments and needs, complaints and aspirations, the alternatives
for the citizen are not so stark. Most people have other activities
which keep them busy most of the time. But everyone, at one
time or another, feels the need to express his feelings and to com-
municate his needs to the political system, whereby the society as
a whole makes binding allocations of values. 40
Needless to say, expanded opportunity for participation will not
by itself quell the sense of dissatisfaction which distresses our
society. As Sidney Verba wrote in a recent analysis pertinent
to the current crisis of participation, "Participation is not neces-
sarily successful participation . . . [but] only [at least] occasion-
ally successful participation is conductive to a feeling of satisfac-
tion with one's political role as a citizen." 41 Additionally, oppor-
tunities for participation must be salient to elicit a response,
particularly among the young and self-aware minority group
members, whose growing, but often untested, sense of self-
assertion and competence tend to spill over into politics, giving
rise to the sentiment of "We'd rather do it ourselves." These
sentiments seek a positive response from the system for suste-
nance and encouragement.
As the American psychologist M. Brewster Smith has aptly
put it :
. . . the strategic factors of the social structure that gear
into these . . . attitudes of hope and of self-respect are . . .
opportunity, respect, and power. Opportunity corresponds
to hope and provides its warrant. Respect by others more
important in this regard than love or approval provides
the social ground for respect of self. And power is the king-
pin of the system. Power receives respect and guarantees
access to opportunity.
Smith adds a warning : "When opportunities are offered without
a sharing of power, we have paternalism, which undercuts re-
spect, accentuates dependence, and breeds a lurking resentment
that the powerful are likely to condemn in righteousness as
ingratitude." 42 In the place of conventional paternalism Smith
recommends "good 'parentalism,' . . . [which] sees to it that
the child has real problems and challenges to face, and that his
solutions are his own." 43 This comment makes explicit the desir-
ability, if not the necessity, of adaptation of leadership styles as
well as channels of influence.
Recalling the unintended consequences of municipal reform
The Responsiveness of Local Government 127
for the quality of governmental responsiveness to the lower
classes, one is well advised to seek a balance between compe-
tence and accountability in government, a distinction which corre-
sponds to that made by Almond and Verba: "On the one hand,
a democratic government must govern ; it must have power and
leadership and make decisions. On the other hand, it must be
responsible to citizens." 44
CONCLUSION
In spite of the points of explicit and implicit conflict between
the two main movements for local government reform the
inner city demands for greater citizen participation and devolu-
tion of authority, and the metropolitan reform sentiments for
greater consolidation and efficiency there is reason to believe in
the possibility of balance between these goals.
The urgent need is for experimentation in the spirit of a com-
mon search for structural arrangements which will provide the
context for increasing the citizen's sense of efficacy and satisfac-
tion with his government, as well as a modified output of policies.
Many such experiments are under way in the various Federally-
assisted local programs such as Model Cities, Neighborhood
Development Program, and the Community Action Program.
The novelty of these and other adaptations of more familiar
ways of running local governments has led to considerable debate
and speculation about their utility, and it is still too early for
a balanced assessment. 45 The search for new forms to increase
both the competence and accountability of local governments is
in the tradition of a nation which has adapted to considerable
strains in the past and which will have to continue to do so in
the future if local governments are to retain their legitimacy.
Jack Dennis and David Easton have written :
The racial crisis of the 1960's has vividly revealed that
even though the prevalent white and Anglo-Saxon ideology
has been built around melting-pot aspirations and even
though this has mitigated against alternative ways of con-
ceptualizing the American social context, the United States
has been unable to escape the strife and turbulence of many
other multi-ethnic societies. American ideology has failed
to constrain American reality. This may ultimately force
the United States to alter its political self-image radically
so that it may begin to reinterpret itself for what it really
is, a society composed of several large and residentially con-
centrated ethnic groups black, Puerto Rican, Mexican
American, American Indian, and others in tense juxtaposi-
tion to the dominant white, English-speaking population. 46
128 Report of the Task Force on Law and Law Enforcement
Now that demands have been made for recognition of the
legitimacy of some degree of community control in these minority
communities, the responsibility lies with the dominant white
group, itself composed of many separate but related identities, to
respond. Our citizens expect a dynamic balance between the twin
goals of governmental competence and political accountability,
and such a balance is thus essential to the strengthening of that
legitimacy of government by which law enforcement can be pri-
marily voluntary rather than coercive.
REFERENCES
1. See text accompanying note 31, infra.
2. Gabriel Almond and G. Bingham Powell, Jr., Comparative Politics:
A Development Approach (Boston, Mass.: Little, Brown, 1966), at
201. And see the discussion in Chapter 1 of this Report.
3. Robert L. Lineberry and Edmund P. Fowler, "Reformers and Public
Politics in American Cities," in City Politics and Public Policy, ed. by
James Q. Wilson (New York: John Wiley & Sons, 1968), at 109.
4. Edward C. Banfield and James Q. Wilson, City Politics (New York:
Vintage Books, 1963), at 139-140.
5. "Foreward to the Second Edition: Gosnell's Chicago Revisited via
Lindsay's New York," in Machine Politics: Chicago Model, 2d edition,
ed. by Harold F. Gosnell (Chicago: University of Chicago Press, 1968),
at x.
6. Id. at x-xi.
7. Id. at xiii.
8. Banfield & Wilson, supra note 4, at 140.
9. J. David Greenstone and Paul E. Peterson, "Reformers, Machines,
and the War on Poverty," in Wilson, supra note 3, at 270.
10. Id.
11. Robert C. Wood, Suburbia: Its People and Their Politics (Boston:
Hough ton Mifflin, 1959).
12. Sumner M. Rosen, "Better Mousetraps: Reflections on Economic De-
velopment in the Ghetto," Social Policy Papers, No. 1, July 1968, at 2.
13. Adam Yarmolinsky in On Fighting Poverty: Perspectives from Experi-
ences, Vol. II, Perspectives in Poverty Series, ed. by James L. Sunquist
(New York: Basic Books, 1969), at 34-51.
14. Among the many specific articulations of this demand by blacks for
greater participation, see in particular Charles Hamilton, in Harvard
Educational Review, Fall 1968, at 669-685, which treates the necessity
of school decentralization as a prerequisite for restoring the ligitimacy
of educational authority.
15. Modernizing Local Government, A Statement on National Policy by
the Research and Policy Committee for Economic Development, (July
1966), at 11-13, as paraphrased in the National Commission on Urban
Problems (hereinafter cited as Douglas Commission Report), Building
the American City (Washington, D.C. : Government Printing Office,
1969), at 326.
16. Id.
17. Id. at 323.
18. Id. at 330.
19. Henry Maddick, Democracy, Decentralization and Development
(London: Asia Publishing House, 1963), at 23.
The Responsiveness of Local Government 129
20. Id.
21. Douglas Commission Report, supra note 14. This includes a Majority
Report and Minority Report, the latter expressing the Chairman's views
and that of four other Commissioners as stated in the "Supplementary
Views on Community Advisory Boards," Part IV, Chapter 2, of the
main report. This majority /minority distinction pertains only to this
chapter and is used here for clarification of views.
22. Id. at 351.
23. Id. at 352.
24. Id. at 351.
25. Id.
26. Id.
27. Id. at 352.
28. Id. at 352-353.
29. Id. at 354.
30. David Easton, A Systems Analysis of Political Life (New York:
John Wiley & Sons, 1965), at 122.
31. Kenneth Prewitt, "Political Efficacy," 9 International Encyclopedia of
Social Sciences 225 (1966-67).
32. Everett F. Cataldo, Richard M. Johnson, and Lyman A. Kellstedt,
"The Urban Poor and Community Action in Buffalo," paper prepared
for delivery at the annual meeting of the Midwest Political Science
Association, Chicago, 111., May 2-3, 1968, which reported preliminary
research findings. Final report to OEO entitled "Change Processes and
Political Behavior in the Urban Community" is forthcoming.
33. Edgar Litt, "Political Cynicism and Political Futility," 25 The Journal
of Politics 312-323 (1963).
34. Ronald Lippitt, "Improving the Socialization Process," in Socializa-
tion and Society, ed. by John Clausen (Boston: Little, Brown, 1968),
at 332-333.
35. John P. Robinson, Jerrold G. Rusk, and Kendra B. Head, Measures
of Political Attitudes (Ann Arbor, Michigan: Survey Research Center,
Institute for Social Research, University of Michigan, 1968). Tables
and graph are adapted from the SRC data plus data from the National
Violence Commission Survey, Nov. 1968).
36. Id. at 633.
37. Id. at 334.
38. For an elaboration of the concept of political culture, see Gabriel
Almond and Sidney Verba, The Civic Culture (Princeton, N.J. : Princt-
ton University Press, 1963).
39. Id. at 143-144.
40. Easton, supra note 30, at 122.
41. Sidney Verba, "Democratic Participation," 373 Annals 53 (1967).
42. M. Brewster Smith, "Competence and Socialization" in Clausen, supra
note 34, at 313.
43. Id. at 315.
44. Almond and Verba, supra note 38, at 476.
45. The Urban Institute is sponsoring a series of studies on the topic
of citizen participation, under the direction of Alan Altschuler of MIT
and David Cohen of Harvard School of Education.
46. Jack Dennis and David Easton, Children in the Political System:
Origins of Political Legitimacy (New York: McGraw-Hill, 1969), at
407.
CHAPTER 7
THE ELECTORAL PROCESS AND
THE PUBLIC WILL*
The legitimacy of our system of government rests upon the
people's belief that its institutions respond to their needs and
represent their views. If the people lack confidence in the elec-
toral system or if they feel excluded from decision-making proc-
esses and helplessly depend on the discretion of governmental
and quasi-governmental officials, the legitimacy of the system
stands almost certainly in serious question, making for politi-
cal alienation in America. Can defects in the national electoral
process convention campaign, and election-which may give
rise to disaffection from the political system, be remedied ?
THE NATIONAL NOMINATING CONVENTION
Since the Civil War, only two political parties, the Demo-
cratic and the Republican, have continued to compete for the
control of the American Presidency and the Congress. Although
a multiplicity of "third" party movements have frequently
nominated candidates for the Presidency, none has succeeded
or endured.
Changing public attitudes have brought national nominating
convention procedures into question and have even damaged
the legitimacy of nominations. Two developments in particular
have disenchanted the public with recent conventions. First,
much of the electorate has the exaggerated notion that deci-
sions regarding nominees and issues result from their expressed
preconvention public preferences. Second, through television the
public can intimately witness, in a fashion never before possible,
the actual machinery and the full trappings of the national con-
vention, revealing to the voter his own impotence.
More and more the convention appears merely to register the
*This chapter was prepared by Judith Toth of Washington, D.C. based
in part on research papers on campaign finances contributed by Dr. Herbert
E. Alexander, Director, Citizens Research Foundation, Princeton, N.J., and
on nominating conventions contributed by Prof. Marvin G. Weinbaum,
Department of Political Science, University of Illinois.
131
132 Report of the Task Force on Law and Law Enforcement
previously expressed wishes of select constituencies, as the in-
creasing incidence of first ballot nominations plainly suggests.
Whether or not that constituency composes the masses of
party adherents, or merely the professional party cadre, how-
ever, stands challenged. No one can say with certainty that
Richard Nixon, rather than Nelson Rockefeller, represented
the choice of the relevant body of voters who in 1968 consti-
tuted or would have constituted the Republican Party, or that
Hubert Humphrey rather than Eugene McCarthy represented
the Democratic choice. 1
In the past, party leaders, acting with only a casual eye to
the electorate, could bargain among themselves in selecting a
presidential nominee. Although they seldom chose a man wholly
unknown to the public, they had little reason to fear grass-
roots dissent. By contrast, today's conventions attend to mass
appeal; a candidate who fails to demonstrate at least potential
popular strength probably will not receive serious considera-
tion. Party professionals cannot easily dismiss aspirants with
proven ability to mobilize voters when only few regular organi-
zations today can deliver large blocs of voters in primaries or
general elections.
Contenders for the nomination have little choice but to carry
their case to the people, especially if their ability to win at the
convention hangs in doubt. In their appeals to the electorate,
contenders work hard to convey the impression that each ex-
pression of public sentiment helps decide their candidacy.
Throughout the preconvention campaign, the voter believes that
the professionals are watching and that his preferences will
not be ignored.
The polling industry shares responsibility for the public's
belief in its own preconvention role. Surveys of opinion that
add to the credibility or embarrassment of contenders also
serve to cultivate the public's consciousness of its own voice.
They also lead logically to the conclusion of the electorate that
it has responsible, worthwhile opinions on candidates and issues.
In its televised proceedings, paradoxically, the convention
seems both overly conscious and strangely oblivious of its na-
tional audience. It projects much that is either florid showman-
ship or tedious party ritual. More significantly, the proceedings of
the convention may strike the viewing audience as largely irrel-
evant the convention has not assembled to ratify decisions
made in the electorate, nor has it come to weigh the qualifica-
tions of the contenders or deliberate on the issues that divide
the party. Too often the public feels itself an intruder, an un-
welcome witness to the party's private business and family
quarrels.
The Electoral Process and the Public Will 133
The rhetoric of conventions can readily augment public dis-
illusionment. Convention managers speak the praises of "open
conventions," yet few delegates seem free. Only a handful of
delegates stand bound to the instructions of primary electorates ;
far more have committed themselves to follow their party su-
periors. Although convention procedures seem democratic in
form, to many in the television audience, presiding officers ap-
pear to make arbitrary rulings, and speakers appear to be
shouted down or denied access to microphones. Platform drafts-
men pledge racial equality, while the convention seemingly
condones racial biases in the selection of its own delegations.
Doubt, therefore, naturally surfaces about the convention's
positive contribution to the national parties. Even when the
large majority of the delegates display the solidarity of the
party, the mass media more often identify the sources of dis-
unity. Contenders' attacks on the qualifications of rivals and
their doubts over the sincerity of their party's platforms
clearly register on an already skeptical public. Moreover, con-
tenders find it difficult to negotiate and compromise when every-
thing is being aired publicly by the news media. Finally, the
convention goal to publicize its national nominees sometimes
backfires when floor demonstrations for the candidates readily
prove counterfeit. It should, therefore, not surprise anyone that
various polls in recent years suggest that from 60 to 70 per-
cent of the American people want to scuttle the convention sys-
tem as it now stands.
This poll does not mean, however, that conventions have
outworn their function in the national parties and in the politi-
cal system, nor that the mass media will in time destroy the
convention system. Indeed, television can be an effective ally
of the convention, particularly in its capacity to project new
faces and ideas, and to activate party loyalties across the na-
tion. Still, a discrepancy prevails between what the public has
been encouraged to expect of conventions and what it is likely
to perceive.
Accordingly, critics ask: "Is this cumbersome production
really necessary to nominate a national slate?" A partial an-
swer lies in the test of time: the convention has produced a
very respectable line of Presidents and has helped hold to-
gether two stable and competitive national parties. National
conventions have endured, moreover, while similar nominating
machinery has largely disappeared in most, if not all, of the
states. National conventions have also functionally contributed
to political parties at three levels : state or local party organiza-
tions ; the national organization ; and the wider party system.
State and local organizations have a distinctive stake in the
134 Report of the Task Force on Law and Law Enforcement
convention's survival, and the needs of individual delegations
have been placed ahead of the national party's objectives. Next
to the central purpose of agreeing on a Presidential nominee,
the demands that state parties have on the convention system,
such as granting recognition to loyal party workers, may seem
peripheral, even trivial. But without the sustenance and satis-
faction of its constituent units, the national party's existence
wavers precariously.
The national parties have considerable stakes in the two-
convention system. As V. O. Key, a respected student of Ameri-
can parties, wrote: "The national convention is at the heart of
the national party system. Without it, or some equivalent insti-
tution, party government for the nation as a whole could
scarcely exist." 2 The convention allows a feudal party to pull
together and assert its national status. It assembles the party's
barons and gives them a few short days to fall behind a single
candidate and platform for the Presidential campaign. Fac-
tions and interests must put aside their very real differences
and an impressive achievement reach common and binding
decisions. The modern successful convention also allows the
party to carry its standards effectively to a mass electorate,
to rally the party's workers, and to stimulate its financial con-
tributors. Never again in the course of the campaign will the
party be able to monopolize the public's attention to the same
extent.
Although the key to the longevity of the convention system
may be its willingness to accept without challenge the auton-
omy of the party's units, the convention's power to set its own
rules and, in particular, to judge the credentials of its delega-
tions can have far-reaching effects on the practices and dis-
tribution of power in the state and local parties. That conven-
tions may increasingly exercise this influence is suggested by
decisions made at the 1964 and 1968 Democratic conventions
such as those dealing with racial bias, party disloyalty, and
the unit rule. These decisions go beyond the traditionally expe-
dient functions of conventions. Only a party in its corporate
capacity, as at its national convention, may force such change.
The national conventions have also left an impression on the
party system and our brand of electoral politics. For more
than 130 years the convention system has furnished an orderly
method for screening candidates for the Presidency. By com-
parison with its predecessor, the congressional caucus, the con-
vention broadened the avenues of recruitment to the Presi-
dency. More often than not, the convention has helped to build
confidence in our electoral system. By offering a vivid illustra-
tion of the kind of integration that operates on a larger scale
The Electoral Process and the Public Will 135
in a pluralistic nation, conventions, at their best, symbolize
our political processes. The compromises of the convention un-
derline the limited objectives and the moderate character of
our electoral politics.
Despite these substantial virtues of conventions, critics still
call for reform of the presidential nominating process. As V. 0.
Key has stated: "Through the history of American nominating
practices runs a persistent attempt to make feasible popular
participation in nominations and thereby to limit or to destroy
the power of party oligarchs." 3
For 42 years of our Nation's early history, years which wit-
nessed 11 major Presidential elections, the members of the
Senate and House meeting in party caucus selected candidates
for the Presidency. Throughout those years, the caucus was
consistently attacked as an aristocratic barrier to popular par-
ticipation in the choice of the party's candidates. 4 The Daily
National Intelligencer on December 5, 1823, colorfully described
the caucus :
A caucus ! A nocturnal assembly convoked at short notice,
after long preparation, bound by no rule, acting without
authority, without the obligation of an oath, within the
immediate reach of every sort of influence, calculated, if
exerted to mislead, to deceive, or to corrupt, guarding the
people of these United States from the mischief threat-
ened by their own Constitution ! 5
The nominating convention, modeled after state constitu-
tional conventions, answered to democratic demands for open-
ing up the nominating process. In 1832, a national convention
met to select Martin Van Buren as the running mate of Presi-
dent Andrew Jackson. By the time of the Civil War, the con-
vention system had assumed substantially its present form.
The expanding democratic instinct did not seem entirely sat-
isfied with the convention system, however, since party elites
demonstrated quite early a remarkable capacity to adopt their
ways to the new forms. 6 Consequently, in the 1840's, an alter-
nate method of nomination appeared in some states the choice
of candidates for office through direct primary elections. By the
end of the century, this new method had superseded the con-
vention system in many localities.
The shift from conventions toward primary elections on the
state level, and toward the election of delegates to Presiden-
tial nominating conventions, represented an effort on the part
of Progressive and Populist reformers to circumvent the con-
centrated political power of party machines. The concentration
of political authority predominated especially in the nation's
136 Report of the Task Force on Law and Law Enforcement
rapidly expanding urban areas, swelled by immigrants from
the farms and from Europe seeking to take advantage of
America's industrialization. 7 As city budgets grew and the
patronage system matured, enormous resources concentrated
in the hands of the urban political machines. Although the ma-
chines could exercise considerable influence at the election
stage, it also had to have control of the nomination stage: As
Boss Tweed put it, "I don't care who does the electing, just so
I can do the Nominating." 8
For the reformers, the direct primary became the instru-
ment by which to pull down the old party apparatus. The di-
rect primary, when accompanied by such other practices of
"direct democracy" as the initiative, referendum, and recall,
would invest the popular will with the power to distribute na-
tional wealth more equitably, to regulate public utilities, and
to attack the trusts. The ultimate faith of the Populists and
Progressives lay in their belief in an essentially rational and
virtuous electorate. The electorate, they believed, was deceived
by the political parties. Through decentralization of the party's
apparatus, they hoped to reacquaint the common man with his
political responsibilities. A local and simpler politics would al-
low citizens to reestablish control over the party, ending the
party hierarchy's vital hold over the selection of delegates to
attend party conventions. 9
During the first 15 years of this century, the Progressives
attempted to bring the national nominating conventions under
popular control. Out of Robert La Follette's unsuccessful at-
tempt to seat his Progressive Republican delegates at the 1904
convention there developed Wisconsin's primary law providing
for the direct election of convention delegates. 10 Further im-
petus to the primary drive came in 1912 when Theodore Roose-
velt charged that the Republican Convention had been "stolen"
by the Taft forces. But the First World War and the subsequent
conservative reaction brought pressures for election reforms to
a virtual halt: from 1920 to 1949 only one state, Alabama,
enacted presidential primary legislation, while 8 out of the
original 26 presidential primary states repealed their statutes.
Low voter participation, high cost of administration, and the
ignoring of primaries by any leading national candidates,
often contributed to the decline of the presidential primary. 11
Not until 1944, when Wendell Wilkie attempted in the Wis-
consin primary to demonstrate that he stood as the popular if
not the professional party choice, did public attention again
focus on the presidential primary. 12 Wilkie's crushing de-
feat in Wisconsin eliminated him from contention, but his en-
try pointed up the usefulness of the primary for testing public
The Electoral Process and the Public Will 137
appeal. Harold Stassen similarly challenged the old guard of
the Republican Party in primary states in 1948, and Minne-
sota, Indiana, and Montana subsequently enacted new primary
laws. But disaffection among party leaders, regulars, and lib-
erals resulted in the repeal for a second time of the primary
laws in both Minnesota and Montana. When Minnesota Demo-
crats found themselves, because of Estes Kefauver's caputre
of the state's primary, unable to send either Senator Hubert
Humphrey or Governor Orville Freeman as delegates to the
1956 convention, the state legislature quickly repealed the
law. 13
Although presidential primaries have not occurred in recent
years in more than one-third of the states, they have had on
certain occasions a very profound impact on the committed
and uncommitted delegates. As John Kennedy's successes in
Wisconsin and West Virginia demonstrated, the primaries have
enabled candidates to gain national exposure and to demon-
strate voter appeal, appeal without which they would have little
standing at the convention. All the same, the candidacy of Estes
Kefauver, as well as that of Taft and Stassen, demonstrated
that primary victories do not necessarily secure a nomination.
Nor, on the other hand, has a record of primary defeats always
eliminated a contender.
Of the various suggestions that have been made for outright
elimination of the convention, the national primary has tended
to dominate every recent discussion of possible change. The
late Senator William Langer (R-N.Dak.) proposed that each
party should hold a nationwide primary on a given day. The
choice would be among all those who filed a petition signed by
one percent of the party's national membership. The candidate
with the highest number of votes would become the nominee.
A less drastic proposal put forward by Senator George Smathers
(D-Fla.) also provides for a national primary but each can-
didate would receive "nominating votes" each state having
the same number of nominating votes as electoral college votes
-and nomination would require a majority of the national
total of such nominating votes. If no one received a majority,
a runoff primary would decide.
Before and since these two proposals, others have variously
suggested doing away with the nominating convention osten-
sibly to assure that the party nominee become the direct choice
138 Report of the Task Force on Law and Law Enforcement
of the people. The most common proposal today suggests a di-
rect national presidential primary with a run-off in the event
no candidate receives a majority of the party's votes.
The major arguments in favor of a single national presiden-
tial primary summarize this way: 14 In the first place, such a
primary, where the candidates and their ideas display them-
selves and contend openly for their party's nomination, would
remove widespread public doubts as to the legitimacy of the
present nominating system and would pave the way for broad-
ening participation in and strengthening the democratic proc-
ess. A national primary would inhibit or eliminate aspects of
the system which lend themselves to political manipulation, and
it would do away with the strategies which would confuse the
party's rank and file. Moreover, because it would lessen the in-
fluence of party leaders, the national primary would make it
possible for more well-qualified and highly respected men to
seek their party's nomination, leading to selection of better
candidates for the nation's highest office.
Secondly, a national primary would extend the two-party
system by encouraging the development of truly national par-
ties with substantial strength in all sections of the nation. It
would probably deemphasize the importance of selecting nomi-
nees from the more populous states with their large blocs of
electoral votes, and it would inhibit the tendency toward appeals
to particular segments of the population which have had an
adverse affect on party unity. Thirdly, a national primary
would reduce the physical and emotional burden on candiates
for the nominations. As presently conducted, the state primaries
devour the time, money, and energy of the candidates.
A number of arguments prevail against the national presi-
dential primary. One, because the structure of the parties re-
flects the fundamental political conditions of the country as a
whole, the existing system serves not only as a technical de-
vice for choosing the candidate, but also as a forum which
best accommodates all varieties of local opinion in a particular
election year. The present, combination of state primaries and
party conventions, separated in time, along with balloting in
the national conventions, provides the flexibility required to
sort out choices among multiple candidacies and come up with
the most-favored candidate; it also brings forth candidates
whose views concur with party principles, traditions and politi-
cal needs. Moreover, campaigning nationwide for the primary,
the run-off when required, and subsequently the general elec-
tion would cost too much. Under the present system, a man of
more modest means can enter a state primary and, if he wins,
The Electoral Process and the Public Will 139
he can develop the necessary organizational and financial sup-
port as he moves toward the national party convention.
So much for a national primary. But what about the existing
convention system and the reforms recently proposed and, to
some degree, implemented in convention procedures.
Although the Constitution has been held to require that vot-
ing in the primary of a political party is a right which cannot
be denied on the grounds of racial discrimination, it remains
true that in some parts of the country, principally but not
exclusively in the states of the Deep South, Negroes still do not
have a chance to participate equally in party affairs. The ex-
clusion, or underrepresentation, of Negroes in state delegations
to national conventions of recent years still shocks the demo-
cratic conscience.
The Democratic Party, profoundly affected by this problem,
has taken steps to deal with it. In 1964, the Convention, al-
though it agreed to seat the regular delegation from Missis-
sippi despite that state's systematic exclusion of significant
segments of the population from full participation in choosing
delegates to the Convention, nevertheless instructed the Demo-
cratic National Committee to include in its Call to the 1968
Convention the following provision :
It is the understanding that a State Democratic Party,
in selecting and certifying delegates to the Democratic
National Convention, thereby undertakes to assure that vot-
ers in the states, regardless of race, color, creed or national
origin, will have the opportunity to participate fully in
party affairs. . . , 15
In addition, the 1964 Convention directed the establishment of
a Special Equal Rights Committee to make sure that state par-
ties complied with the new requirement. Subsequently, the 1968
Democratic Convention rejected the Mississippi delegation on
the grounds that it excluded Negroes from participation and
thus reaffirmed its 1964 mandate of achieving voter participa-
tion in party affairs "without regard to race, color, creed, or
national origin/' 16
Also the 1968 Convention dealt with the problem of a delega-
tion from Georgia picked by the two top state party officials,
by confining the handpicked delegation to half the convention
seats, and by allocating the remaining seats to the group led
by Julian Bond. As to the future, the Convention took steps
to insure a far greater representation in selecting Convention
delegates, by establishing a Special Committee to study the
delegate selection processes in effect in the various states and
to recommend improvements in order to promote broader
140 Report of the Task Force on Law and Law Enforcement
citizen participation. The Special Committee will make its re-
port to the 1972 Convention. Also, the Call for the 1972 Conven-
tion will contain the following language :
It is understood that a state Democratic Party, in select-
ing and certifying delegates to the National Convention,
thereby undertakes to assure that such delegates have been
selected through a process in which all Democratic voters
have had full and timely opportunity to participate. 17
The election of delegates by direct primary offers an excel-
lent way to open up the nominating process to greater public
participation. The Florida primary law, for example, provides
that delegates may run only as a slate, but that the statewide
vote controls the election of delegates at large, and that the
district vote controls delegates running in the districts. Each
slate may run either unpledged or under the name of its pre-
ferred Presidential candidate, which then also appears on the
ballot. It does not require the formal consent of the candidate.
If more than one slate files, preferring the same candidate, the
candidate may choose which slate he wishes to represent him.
This arrangement produces a valid mandate, and yet leaves
open the possibility of drafts. One disadvantage obtains, how-
ever: those who vote for slates pledged to losing candidates
may feel unrepresented at the convention itself.
The New York primary, on the other hand, directly elects indi-
vidual district candidates, who run unpledged, although they
may advertise their preferences as they choose. Candidates do
not run on statewide slates, so that any prospective Presiden-
tial nominee can find some support within the selected delega-
tion. The party organization chooses delegates at large. Under
this system, the voter has approximately the same opportunity
for seeing his preference expressed at the national convention
as he enjoys in electing members of the state legislature.
Some proposals have suggested combining the present con-
vention system with a national system of state primaries. Sen-
ator Estes Kefauver proposed direct primary elections in each
state, at which time a slate of pledged electors would be chosen.
Subsequently, at the national convention, each delegation would
continue voting for the pledged candidate so long as he re-
ceived at least 10 percent of the total vote. If no candidate
received a majority on the first ballot, and no candidate could
gather enough additional votes from those not committed by
the 10-percent provision, then the convention would choose
among the three highest ranking contenders. In Senator Paul
Douglas* variation, federal grants-in-aid would finance primar-
ies in states which choose to hold them. Delegates so chosen
The Electoral Process and the Public Will 141
would have to vote for the winner of their state's preferential
poll unless, or until, he received fewer than 10 percent of the
total votes.
Criticism has also centered on internal convention proce-
dures or rules which tend to prevent delegate voting patterns
from reflecting the views of their constituencies. The most
offensive prescription has been the so-called "unit rule/' by
which the national convention would honor the requirement,
adopted by a state delegation, that the entire vote of the state
reject the wishes of the majority of the state's delegation.
Thus, a majority in a unit-rule state could exercise more weight
than a comparable majority in a state operating without the
unit rule. Since the Republican Party has specifically banned the
binding of any delegation to its Convention by unit rule, only
in the Democratic Convention the rule applied. In 1968, nine
delegations went to the Chicago Convention bound by the unit
rule, with several others free to invoke the rule if they so chose.
In 1968, debate over the future of the unit rule occupied
much of the time of the Democratic Committee on Credentials,
the Committee on Rules, and the Convention itself. On the rec-
ommendation of the Committee on Credentials, the Convention
approved a report stating :
While it is indispensable to democratic processes that there
come a time when a final decision must be reached by
majority vote, a necessary consequence of the Unit Rule
is the submergence of minority views and representation.
The new [so-called "Special"] Committee should examine
this question. 18
The Convention also specifically provided that, as to delegates
to the 1972 Convention, "the unit rule [shall] not be used in
any stage of the delegate selection process."
But if the unit rule goes, the spirit of the unit rule lingers
on in some quarters. Observers at the 1968 Democratic Con-
vention noted that even in some delegations not bound by any
unit rule, the leader of the delegation would frequently vote
all of the state's votes according to his own preferences unless
the dissenting delegates specifically asked that their votes be
cast a different way. Those who remained silent saw their votes
announced without their ever having been consulted.
Internal convention practices might be considerably improved
in other ways. Some have described the atmosphere of most
national conventions as "confusion, childish horseplay, and ir-
rationality not conducive to calm deliberation on party princi-
ples, programs and men." 19 On occasion, convention chairmen
have misued parliamentary procedure to prevent the counting
142 Report of the Task Force on Law and Law Enforcement
of dissenting votes or the expression of dissenting opinions.
Galleries, packed to create a false impression of popularity for
a particular candidate or for the head of the host state dele-
gation, create greatly false impressions.
The parties themselves must improve the internal procedures
of the conventions. Presumably, party leaders have become
sensitive to the increasing disfavor with which the public
greets arbitrary chairmanship and the stifling of debate.
Lengthy parades and irrelevant speeches have no adequate jus-
tification today, when millions watch convention proceedings
on television. No one can justify or excuse attempts by party
"leaders" to exclude representatives of certain segments of the
party from access to microphones, or to shout them down dur-
ing speeches.
Awareness of the public presence has become a giant first
step toward reform. Hopefully, the reforms of the 1960's will
be dwarfed by those which will be adopted in the 1970's in
order to preserve the convention system.
THE POLITICAL CAMPAIGN
Americans are now more numerous, younger, more suburban,
better educated and wealthier than ever before. They are also
more mobile and less parochial. Over this kind of constituency,
political organization can not hope for unquestioning loyalty. As it
is, the number of voters who register as "independents" in-
creases. These people will have to be wooed by the candidates
with the help of polls, computers, mass mailings, television,
and other means from modern technology. One observer has
written :
New campaign techniques as practiced by professional
managers win elections. The traditional party organiza-
tions can no longer win elections when opposed by these
new managers and techniques. Some have been slower to
learn this than others and have paid in defeat at the
polls. 20
The new techniques require large sums of money, and a
growing belief exists in this country that a small group of
people, who by reason of money, position and power, control
the present government and have the ability to maintain that
control in the future, regardless of the wishes or needs of
the people. That this kind of notion could gain such wide-
spread currency in a nation dedicated to the principle of a
"government of the people, by the people, and for the people"
is unfortunate, but how much does it cost to elect a candidate
The Electoral Process and the Public Will 143
and where, in fact, does the money come from? Is there, as
some claim, an industrial-political complex?
Money, of course, is one important factor among many af-
fecting the outcome of elections. In politics, as with most other
enterprises, there is no guarantee against waste and ineffi-
ciency. The amount spent does not necessarily have any re-
lationship to the caliber of the campaign or to the discussion
of crucial issues. Campaign spending varies according to the
availability of money, the nature of the contest, and the con-
stituency to be reached. For example, a candidate may win be-
cause he could spend more money, or he may have attracted
more money because he looked like a winner. The more popular
candidate attracts not only more votes but also more money.
A certain amount of money spent in any competitive situa-
tion gives the candidate's name prominence and ensures visi-
bility, even to remind voters of the names of well-known in-
cumbents. But beyond such minimal spending, ignorance pre-
vails about the marginal increment per dollar or of the differ-
ential effectiveness of various campaign techniques. But, ob-
servers agree, money has greater impact in the prenomination
period than in the general election period.
Moreover, spending represents only one aspect of the broader
issue of access to the electorate through the communications
media. Sympathy on the part of those controlling the mass me-
dia, or those possessing the skills for reaching the electorate,
can play a significant part in the battle for men's votes.
Concern about the larger political influence which some think
the rich exercise, is not a new phenomenon. This concern cen-
tered on the basic political divisions which brought forth our
two major political parties, and the varying manifestations of
this concern have continued since that time to illuminate, or
to becloud, our political life. Lately, however, students of be-
havioral psychology and of advertising techniques say that the
decision-making process betrays no more rationality in the
arena of politics than in other areas of human activity. Indeed,
the outcome of democratic political contests, whether elections
or legislative struggles, can be substantially influenced by the
quantity and character of the appeals for public support, as well
as by their inherent rationality. While people, not dollars, vote,
dollars help to influence voter behavior.
In 1952, about $140 million was spent on American politics at
all levels. By 1964, the figure had risen to at least $200 mil-
Ion; 1968, to about $300 million. National party organizations
heavily depend upon large contributions defined as those of
$500 or more to finance campaigns. Table 1 indicates the per-
centage of individual contributions of $500 or more received
144 Report of the Task Force on Law and Law Enforcement
by the national level committees of the two major parties in
recent years.
1
(In
?able 1
Percent)
National level
committees
1948
1952
1956
1960
1964
Democratic
69
63
44
59
69
Republican
74
69
74
58
28
The Republican achievement of 72 percent of income in 1964
received in contributions of less than $500 represents the high-
est percentage either party has attained in modern times, thanks
largely to the Republican National Sustaining Fund, a tremen-
dously successful $10-a-year membership program started in
1962. The Democratic National Committee has likewise had a
sustaining fund for more than a decade, but its success has
been limited.
In 1964, probably 12 million Americans gave money to some
party or candidate, showing an increase of 9 million since
1952. The 12 million donors in 1964 represent about 17 percent
of the number of citizens who voted in the 1964 Presidential
election. These data suggest that while a relatively large pro-
portion of the resources available to national organizations
generally stem from donors of more than $500, small contrib-
utors especially Republicans have started to bear a greater
share of the overall cost.
The investment of the "financial elite" in politics has been
extremely difficult to document. By contributing to different
campaign committees supporting the same candidate, for ex-
ample, effective tracing of an individual's contributions be-
comes frustrated. Difficult to determine even with reasonable
accuracy is the amount of the political contributions made by
any person, group, association, or corporation.
In 1964, about 10,000 persons made reported contributions in
sums of $500 or more, for a total of $13.5 million. One hundred
and thirty of these made reported gifts aggregating $10,000 or
more for a total of $2,161,905, or 7 percent of the total. Of the
130 very large donors, 52 gave to the Republican cause and 65
to the Democratic, while 13 contributed to both.
With the increasing complexity of government, combined with
the affluence of the private sector of the American economy, the
instances of wealthy contributors winning appointive office have
become fewer. Of the first 27 noncareer Chiefs of Foreign Mis-
sions appointed by President Kennedy, only 7 had made recorded
contributions of $500 or more. Of some 35 similar appointments
by President Johnson during 1964-65, only 10 went to large
The Electoral Process and the Public Will 145
contributors. Nor have major contributors accounted for a large
percentage of the other, nondiplomatic major appointments in
recent years. Of 253 major appointments made by President
Kennedy through mid-1961, only 35, or 14 percent, were found
to have contributed $500 or more in the 1960 campaign. Four
of those 14 had actually given to the Republicans. Under Pres-
ident Johnson, only 24 of 187 major appointees through Septem-
ber 1965 had given $500 or more in the 1964 campaign.
In 1956, the Gore Committee analyzed reported large gifts
($500 or more to candidates and campaign committees from the
lists of officers and directors of 13 trade associations and special
interest groups. 21 A continuation of the analysis through the
1960 and 1964 elections shows a decrease in giving by such indi-
viduals. 22 In none of these Presidential election years did more
than 15 percent of the officers and directors of these combined
groups contribute not a much higher percentage than for the
population as a whole. Admittedly, the percentages among the
selected 13 groups become reduced considerably by the large
number of noncontributors among the top leadership of such
groups as the National Association of Real Estate Boards and the
American Bar Association. (The ABA figures boggle, for mem-
bers of a profession that consistently provides so many candidates
for major public office; in 1964, among 267 members of the ABA
House of Delegates, only 5 contributed an aggregate of $5,000.)
The highest percentages of recorded contributors represent the
membership of the Business Council, which has been called the
elite of business and finance, the essence of the so-called "estab-
lishment." Of the Business Council's membership, 53 percent
were listed among large contributors in 1964, almost 60 percent
in 1960, 45 percent in 1956 ; the aggregate amounts of contribu-
tions from these men decreased between 1956 and 1964. The
special circumstances of the 1964 campaign brought a much
higher percentage of Business Council membership giving to the
Democrats, whereas before the overwhelming bulk of the mem-
ber's gifts had gone to Republican causes.
If any group would seem to have special reasons for making
significant contributions to the party in power, it would be per-
sons associated with defense industries and receiving a large
share of federal contracts. In part, the record of 1964 of those
giving sums of $500 or more, would seem to bear out the assump-
tion. Twenty-four percent of the directors and executives of the
10 top defense contractors in fiscal year 1964 contributed as op-
posed to 13 percent for the entire group of trade associations
and special interest groups listed above. But the amount of the
contributions was not high.
146 Report of the Task Force on Law and Law Enforcement
Year
Number
members
Number
contributors
Number of contributors and
amount of contribution
Republican Democrat
1964
136
33
23;$45,250 15;$32,000
Moreover, in a year when the Democrats had been expected to
retain the White House with ease, the officials of these defense
contracting firms still gave more money to the Republicans. 23
Another indication that men of wealth do not seek unduly to
influence politicians is the absence on reporting rolls of persons
hedging their bets by buying stakes in the campaigns of opposing
candidates. On the national level, the number of individuals
giving both to Republican and Democratic causes over the past
several years has not been great. The list of those who gave to
candidates competing for the same office or to committees op-
erating at the same level is still smaller. The most common
instance of split ticket giving occurs when one gives to the
Presidential candidate of one party and to a Senate or House
candidate of another party. These "split contributors" simply
do the financial equivalent of splitting their tickets ; they do not
necessarily seek to maximize political influence by purchasing
the favor of both sides.
What about wealthy candidates? Only a wealthy person, it is
said, can run for high political office. Recent experience in Pres-
idential elections does not support that view. Franklin D. Roose-
velt, Dwight D. Eisenhower, John F, Kennedy, and Lyndon B.
Johnson had wealth, yet only in Kennedy's case did it seem
demonstrably decisive. Two losers, Adlai E. Stevenson and Barry
Goldwater, both considered wealthy, do not demonstrate that
their wealth had anything to do with their getting the nomina-
tion or losing the subsequent election. Their wealth may have
had more to do with their entering politics in the first place.
Harry Truman, Thomas Dewey, and Richard Nixon (in 1960)
were not even moderately wealthy when they ran for President.
Yet money can create sudden availability, as it did, of course, for
John F. Kennedy in 1960, for Nelson Rockefeller in 1964 and
1968, and for Robert F. Kennedy in 1968.
Political managers often complain that it takes more money
to publicize an unknown. They may be tempted to give nomina-
tions to men able to finance their own campaigns, in order to
free party funds for other campaigns at other levels. Men less
well endowed ordinarily start at lower elective levels and earn
their way upward more slowly-except perhaps for certain other
highly visible individuals, such as movie actors. Once in office,
the wealthy incumbent has a freedom of action that others less
wealthy do not have if they depend on political contributions for
their funds.
The Electoral Process and the Public Will 147
Big money seems to exercise its greatest influence at the pre-
nomination stage of the electoral process, when access to large
numbers of small contributors becomes ordinarily less available
than in the general election. The best estimates of costs of the
preconvention Republican campaigns in 1964, for example, are
as follows : 24
Goldwater At least $5.5 million
Rockefeller Between $3.5 and $5 million
Scranton $827,000
Lodge Over $100,000
Nixon . Over $71,800
Conversely, the McCarthy movement in 1968 represents a
major candidacy that basically did not depend upon large con-
tributions. Starting as a "policy campaign," is turned into a
full-fledged nomination campaign, managing from primary to
primary to find the financial means to carry on. The financing
came from a relatively large number of small contributors, a
smaller number than in the Goldwater prenomination campaign
of 1964 ; 25 it demonstrated that a left-of -center candidacy could
also be financed from a broad base. Although the McCarthy cam-
paign had several very large contributors, it nevertheless stands
as a remarkable phenomenon in the nature of its financial con-
stituency.
Personal wealth or access to the financial resources of others
also acts as a screening device at other levels in the electoral
process. Sometimes these screens are legally established. For
example, in recent years, the Democratic Party of South Carolina
has assessed up to $2,000 as a qualifying fee for candidates for
Governor and U.S. Senator in the primary elections. In Indiana
in 1964, before a candidate's name could be placed before the
Democratic State Convention, he had to pay a filing fee to the
party, ranging from $2,500 to $750 for statewide offices, $2,000
to $750 for certain judicial offices, and down to $250 for delegates
and 100 for alternates to the Democratic National Convention.
High filing fees are not uncommon in other states.
Moreover, a study conducted by the Citizens' Research Founda-
tion of 1964 Democratic and Republican national convention
delegates indicates that money can determine who may partici-
pate in this phase of the presidential nomination process. The
median family income for Democratic delegates was $18,223,
compared with the national median family income of $5,742 for
1964; for Republican delegates the median was slightly higher,
$20,192. 26
Existing federal and state laws relating to political finance are
essentially negative in character, containing numerous prohibi-
tions, limitations, and restrictions. Existing statutes seek to
restrict both the sources of campaign contributions and the ex-
148 Report of the Task Force on Law and Law Enforcement
penditures by candidates. The federal government and about 30
states forbid corporations to make contributions in connection
with any election to a national office (U.S. Code, Title 18, S. 610).
Similarly, statutes prohibit labor unions from making contribu-
tions or expenditures in connection with elections (or nomina-
tions) for federal office (Taft-Hartley Labor Management Rela-
tions Act of 1947), though these prohibitions do not apply to
voluntary contributions of union members to be spent by the
unions' political committees. A federal statute making it illegal
for "whoever" enters a contract with the U.S. government to
make a political contribution (U.S. Code, Title 18, S. 611) has
not deterred officials of contracting corporations from making
gifts. The Hatch Act makes it illegal for anyone to contribute in
excess of $5,000 to a candidate for federal office; but, though
this twists the statute, one can contribute to as many national
or state committees as are active, and some states do not require
reporting of contributions. More significantly, the federal gift
tax. probably limits political contributions more than the Hatch
Act or any related state statutes.
Statutory limitation of expenditures has also been attempted.
The Federal Corrupt Practices Act of 1925 limits the spending of
candidates for the U.S. Senate to $10,000 and of candidates for
the House to $2,500. The effect of these limits can easily be
avoided by using multiple campaign committees, and the statute
is a dead letter.
These laws represent unsuccessful piecemeal efforts to deal
with problems as they arose. No comprehensive attempt to deal
legislatively with the problems brought about by the role and
influence of money in politics has ever taken place, yet a number
of proposals have been offered in the areas of disclosure and
publicity, governmental assistance and political broadcasting.
Proposals for mandatory disclosure of financial contributions
vary considerably as to the scope of activities and contributions
to be disclosed, the coverage as to types of candidates and com-
mittees, the content as to itemizing and totaling of receipts and
disbursements, and the timing of reports, both pre- and post-
nomination and election. 27 Securing disclosure is only a first step,
however ; the larger purpose is to inform the public about sources
of funds and categories of expenditures.
To insure wide publicity, the President's Commission on Cam-
paign Costs 28 recommended the establishment of a Registry of
Election Finance in the General Accounting Office, supplanting
the present practice of reporting to the Clerk of the House of
Representatives or the Secretary of the Senate, who as political
appointees are under more constraints than the GAO. The Regis-
try would have the responsibility to receive, examine, tabluate,
summarize, publish, and preserve the reported data, and to refer
The Electoral Process and the Public Will 149
apparent infractions of law to appropriate enforcement agencies.
In addition, President Kennedy proposed a registration system,
under terms of which committees undertaking activities affecting
candidacies reportable under the law would have to file official
notice of intention to operate. Once registered, they would have
to report periodically. The Registry would make reports avail-
able to the public, list and draw together relevant data regarding
specific candidates, and undertake wide dissemination of the field
data.
As for governmental assistance to candidates, public policy
could follow one of two main paths : encouraging a vast expan-
sion in the number of small voluntary contributors, or providing
public subsidies to assist the parties and candidates in financing
campaigns. With some exceptions, the Commission on Campaign
Costs generally advocated the course of expanding the financial
base of support for the parties. In recommendations made to the
Congress in 1966, President Johnson followed much the same
course.
One way of encouraging contributions is a system of limited
tax credits and deductions for political contributions to give the
potential contributor incentive to contribute by providing a fi-
nancial benefit through the tax structure. Tax incentives have
an advantage over direct subsidies in that the amount and direc-
tion of the assistance are determined by citizens in their contribu-
tion patterns, not by inflexible formulas. Five states have adopted
deductions but because state income tax rates are low, their ef-
ficacy remains unproved. Their importance rests in dignifying
political contributing, in giving government encouragement to
giving, and in providing solicitors with an additional sales tool.
One form of help to candidates, both in pre- and post-nomina-
tion periods, is the Minnesota enactment permitting specified
candidates (and certain party officials) to deduct from their gross
state income tax liability a limited amount of campaign expendi-
tures or political costs which they had personally paid. 29 The
rationale is that politics should be considered a business for some
persons and accorded similar, though limited, benefits, as com-
pared to those granted to a business man incurring certain ex-
penses in the course of business-connected activities.
A form of partial governmental subsidy compatible with ex-
panding of financial constituencies was suggested, though not
recommended, by the President's Commission, if the tax incentive
system was first tried and failed. Under the "matching incentive"
plan, the party organization would be given incentive to seek out
large numbers of contributors ; contributions in amounts of $10
or less per contributor raised by designated political committees
would be deposited by the committees with the United States
Treasury where the money would be matched by a like sum from
150 Report of the Task Force on Law and Law Enforcement
public appropriations. The combined total would be available to
the committee to meet authorized types of costs, payments being
made by Government check to sellers of goods and services. Pay-
ment by Government check, as well as post-audit and public re-
ports, would give assurance that appropriated and contributed
funds were being properly used.
The 1966 Presidential Election Campaign Fund Act, authored
by Senator Russell Long (D.-La.), provided a tax checkoff system
under which each taxpayer (husband and wife could each check
off on a joint return) could designate that $1 of his tax payments
be diverted to a special fund for distribution to national political
parties for use in Presidential general elections. This subsidy
plan received an unfavorable reaction in the media, partly be-
cause of the way it passed (as an amendment to an unrelated bill,
without consideration by elections or appropriations commit-
tees), and partly because it was not accompanied by a revision
of other laws affecting political finance, but merely added money
without achieving reform. Also, the act raised serious constitu-
tional questions, including the question of fair treatment of minor
parties, and guidelines indicated expenses that could be reim-
bursed. As enacted, the subsidy would have gone to the national
committee of a qualifying party, and thus could have changed the
balance of power within the major parties by infusing large
sums of money at the top of the party structure, previously de-
pendent to some extent upon state and local funds filtering up to
the top. Before the subsidy plan had a chance to operate, how-
ever, strong pressures developed for congressional repeal or mod-
ification of the law, and it was in fact rendered statutorily inop-
erative after having been on the books only seven months.
The Senate Committee on Finance later reported out a new
bill (Rep. No. 714, Committee on Finance, U.S. Senate, 90th
Cong., 1st sess.) which provided for both tax credits for political
contributions and a subsidy formula for Presidential and Sen-
atorial candidates. Under this bill, the subsidy would not have
gone to the parties, as in the earlier formulation, but directly to
the candidates, and thus might have had a splintering effect upon
the parties by decreasing financial dependence of candidates upon
their parties. This bill, however, was not enacted.
Another way to reduce campaign costs is to guarantee greater
access of candidates to radio and television time. Broadcasters
generally favor abolition of section 315a of the Federal Com-
munications Act, the equal opportunity provision, which provides
that when a qualified candidate for any public office is permitted
to use broadcasting time, equal opportunity must be afforded all
other candidates for the same office, even candidates of minor
parties. This provision restrains broadcasters from affording
free time as a public service to major candidates. (The equal op-
The Electoral Process and the Public Will 151
portunity provision was suspended with respect to the Presiden-
tial and Vice Presidential campaigns of 1960, thus permitting
the "Great Debates" without requiring stations to provide equal
time to the minor party candidates also running for President.)
One possibility short of repeal of the provision would be to
revise the equal opportunity standards to permit "differential
equality of access" for major and minor parties and candidates,
so that major candidates could be alloted more time than minor
candidates. Another proposal which has been made is to amend
the Internal Revenue Code so as to give an incentive to broad-
casters to program free time by permitting them to deduct from
their taxable income a portion of the lost revenue for normal
time charges in addition to out-of-pocket expenses of free broad-
casts, now deductible anyway. Still another possibility could
require broadcasting stations to give limited free time to political
candidates as a condition of licensing. Alternatively, a free time
requirement could be limited to public, or educational stations.
THE ELECTION
Basic to American political thought is the ideal that each man,
white or black, rich or poor, should be heard through his repre-
sentative. The broadening of the franchise to include the poor,
the Negroes, women; the reapportionment decisions of the Su-
preme Court to bring about fair ratios of people to their repre-
sentatives; the discontents of the electorate over the existing
convention system and the electoral college all have placed all
Americans one step closer to the promise of democracy in this
country.
Nevertheless, not more than 60-65% of the total voting age
population goes to the polls during a Presidential election. Some
stay away voluntarily, from either apathy or protest. The apa-
thetic will always be with us; their role in society is limited to
what contribution they make in pursuit of their own interests.
But those who stay away from the polls in genuine protest against
the proffered choice of candidates number very few ; the fallacy
of their method of protest is that it cannot be measured. The
protesters blend with the apathetic and make no impact on the
system.
Those who do not refrain from voting voluntarily the dis-
enfranchised are another matter. Several features of state law
still operate to restrict the franchise in the United States, some
of them universally recognized as necessary prohibitions like
those against voting by mentally incompetent persons or children
and some of a more disputable nature, such as the variety of
residence requirements that exist in the various states.
Today, all states have residence requirements of some nature.
152 Report of the Task Force on Law and Law Enforcement
The most common requirement is one year, imposed by 33 states.
Mississippi has the most stringent-2 years. The mildest require-
ment is West Virginia's, only 60 days. Most states also require
a specified term of residency in the county, precinct or ward ; in
every case less than the requirement for residency in the state
itself.
Exact figures are not available on the number of Americans
actually disenfranchised by residency requirements. Population
mobility has always been a prominent feature of American life,
and each year about one of every five Americans moves. A large
proportion of these moves are only on a local basis, however, so
that many citizens can maintain their vote if they will go to the
trouble of registering again at their new addresses. Some local-
ities encourage registration by setting up evening registration
in local schoolhouses, fire stations and the like ; but many require
the voter to appear at an inconvenient city hall or courthouse
registration office during regular business hours, when he would
normally be at his job.
In recent years, increasing opposition has mounted against
the disfranchisement of voters in Presidential elections because
of changes in residence. Even if a residency requirement can be
justified for local elections, the argument goes, can it legitimately
-and constitutionally be used to prevent citizens from partici-
pating in Presidential elections ? The mere fact of change of resi-
dence does not make a person any less a citizen of the United
States, with any less stake in the Presidential election.
A longstanding problem of the gravest sort has been denial to
Negroes of the right to vote. In the relatively short period since
the passage of the Voting Rights Act of 1965, however, it has
significantly advanced voter registration and political activity,
especially among Negro citizens in the South. In 1960, the total
number of Negroes registered to vote in our southern states was
1,410,148. By 1966, the number had increased dramatically to
2,469,837 or by 75 percent. 30 This progress has occurred thanks
to the implementation of the Act by the Department of Justice
and the Civil Rights Commission, by the efforts of private civil
rights organizations, and by the acceptance throughout the coun-
try, but especially in the South, of the administrative enforce-
ment of voting rights. 31 According to the Voter Education Proj-
ect of the Southern Regional Council, in 1965 when the Voting
Rights Act went into effect, 72 black officials were elected in the
eleven Southern states. Since the elections in 1968, the number
stands at 388. (This report only included those persons elected
to public office, while gains have also been made in the number
of appointive offices held by blacks.)
In the country now, the total number of black elected officials
is estimated by the Democratic and Republican National Com-
The Electoral Process and the Public Will 153
mittees at well over 800. However, the total number of elected
officials in the Nation is 520,000. Thus, with the black population
just under 12 percent of the total, they are still only holding
0.015 percent of the elected offices.
Moreover, not one Negro Senator or Congressman has repre-
sented the South since the turn of the century, although 10
represent other parts of the country in the 91st Congress the
largest number since Reconstruction. 32
Supreme Court decisions in recent years have also helped to
extend the franchise. The "one man, one vote" reapportionment
ruling has made political districts more reflective of the popula-
tion distribution within the states. This ruling is presently being
challenged, however, by the call to convene a constitutional con-
vention which was led by the late Senator Everett Dirksen (R.-
111.) . In the event the states decide to answer the call, the conven-
tion could overturn the Supreme Court's ruling.
One clear defect in our political system that contributes to the
loss of a feeling of legitimacy about the actions of government
is the exclusion of young people from voting. Most 18-year-olds
feel very strongly that they have every necessary qualification
for voting, including particularly the qualification of exposure to
compulsory military service; objectively, it is impossible to dis-
agree with them. Yet only Georgia and Kentucky permit 18-
year-olds to vote Alaska, 19-year-olds, and Hawaii, 20-year-olds.
The result is that in the rest of the country, millions of young
people, interested in public issues and wanting to make their
views on these issues felt, have little outlet for this feeling other
than through participation as a worker in political campaigns.
That thousands of young people have chosen this latter course of
political action recommends them highly. But it does not alter
the fact that our system of laws, by denying young people the
right to vote, tends to force the expression of their views outside
the legal system, in demonstrations on our campuses and in our
streets, and other assaults upon our system.
Another feature of our election process that has come under
increasing criticism is the electoral college. Under the Constitu-
tion, the November election is not for Presidential candidates
themselves but for the electors who subsequently choose a Presi-
dent. All that the Constitution says of this stage of the election
process is: "Each state shall appoint in such manner as the
legislature thereof may direct, a number of electors, equal to the
whole number of Senators and Representatives to which the state
may be entitled in Congress." In 1968, there were 50 states with
a total of 100 senators and 435 representatives, plus three elec-
tors from the District of Columbia (added in 1961 as a result of
the enactment of the 23d amendment). Hence, the total number
of presidential electors in 1968 was 538. In practice, in every
154 Report of the Task Force on Law and Law Enforcement
state, the political party obtaining a plurality of votes, no matter
how small, names the entire slate of electors. This practice, how-
ever, is not required by the Constitution, and each state is thus
free to change it at will.
The electors chosen on election day convene as "colleges" in
their own states on the first Monday after the second Wednesday
in December and cast their votes for a President and Vice Presi-
dent of the United States. If no Presidential candidate receives
a majority of the electoral votes when these are formally counted
in Congress on January 16, the task of choosing a new Chief Ex-
ecutive is constitutionally given to the House. (This phenomenon
has occurred twice in history: first, following the elections of
1800, when Jefferson and Burr had tied in the electoral voting;
and second, in 1824, during the Adams- Jackson election in which
neither garnered a majority of the electoral votes.) The Consti-
tution gives each state a single vote in choosing a President in
the House, and a majority of the states is required to elect. The
House must choose from one of the three top electoral vote re-
cipients. The rules of the House provide for continuous balloting
on President until a winner is declared. (It took 36 ballots to
select Jefferson over Burr.) Under existing law, the balloting
would start January 6, leaving 14 days until the scheduled in-
auguration. If no President were chosen by January 20, under
the 20th amendment, the Vice President-elect would become
President. But he would only be Acting President, subject to
removal at any time that a majority of the delegations in the
House agreed on a new President.
If no candidate for Vice President receives an electoral col-
lege majority, the Senate elects a new Vice President, with each
member having a single vote and an absolute majority of the
Senate membership required for election. Here the choice must
be from the top two electoral vote recipients for Vice President.
(Only once in history has the Senate been called on to choose a
Vice President in 1837, when Martin Van Buren's Vice Presi-
dential running mate, Col. Richard M. Johnson of Kentucky, won
only 147 electoral votes, one less than a majority, but was elected
by the Senate over the runner-up in the electoral vote for Pres-
ident.)
From the start, the method of electing the President has been
a subject of debate and discussion. At the Constitutional Con-
vention, a few key members, including Madison, Franklin and
Gouverneur Morris, favored direct popular election. Others
would have preferred to see the President elected by Congress or
by State Governors. One of the main arguments for the electoral
college system was that through the provision for at least three
electors regardless of population, it gave the small states some
protection against domination by large states. If we were to
The Electoral Process and the Public Will 155
preserve our Federal System of government, it was felt, this was
an important consideration, and this argument may have gone
far in swaying the Convention.
Since January 6, 1797, when Rep. William L. Smith of South
Carolina offered in Congress the first Constitutional Amendment
proposing reform of our procedure for electing a President,
hardly a session of Congress has passed without the introduction
of one or more resolutions of this character. In the 57-year
period between 1889 and 1946, 109 amendments were proposed
and 172 in the period from 1947 to 1965. Most interestingly,
probably more amendments have been proposed concerning the
presidential election than concerning any other single provision
of the Constitution.
Those who favor retaining our present electoral system argue
that it has stood the test of time and that it has produced only
three Presidents who failed to win a plurality of the popular
vote (Adams in 1824, Hayes in 1876, and Benjamin Harrison in
1888). On only two occasions since 1789 has the election of the
President fallen into the House of Representatives (in 1800 and
again in 1824) , and only in one of these instances did the election
by the House result in the selection of a "minority" President
(Adams). Moreover, the existing system, with its requirement
of an absolute majority of electoral votes and the general state-
unit system which tends to produce the necessary electoral vote
majority for one or other of the major parties, operates to freeze
out third parties. The existing system's exaggeration of the win-
ner's electoral vote helps assure stability, it is argued, in giving
the appearance of nationwide backing in a particularly close and
hard-fought campaign. Thus it may help the newly elected Pres-
ident to win general acceptance. The existing system "forces"
candidates to campaign in most of the states, whereas in a direct
election, he would concentrate most of his efforts in densely pop-
ulated states, and particularly in urban areas. Blocks of primarily
rural states (e.g., the South) could be practically ignored or left
to third party candidates altogether. Finally, it is said, too much
uncertainty persists as to what is a better method.
Those who oppose the present electoral college system make
several points. First, they criticize the office of presidential elec-
tor, including its "independent" nature and the authority of the
states at any time to change the method of "appointing" or
selecting the electors (i.e., to manipulate the system from election
to election). Second, they argue that under the so-called "win-
ner-take-all," unit-rule, or general-ticket method (which credits
a state's entire electoral vote to the candidate receiving the most
popular votes), great numbers of voters become disfranchised
and, in effect, have their votes cast in favor of the candidate they
opposed. Third, the present system in placing exaggerated im-
156 Report of the Task Force on Law and Law Enforcement
portance on the large swing states with great blocs of electoral
votes, inflates the bargaining power of minorities and pressure
groups in such states where the popular vote closely divides and
invites fraud in the large, crucial states where the vote may be
close.
The proposed amendments to the Constitution of the United
States which would provide new methods for the election of the
President fall into five general classes : direct election plans, dis-
trict plans, proportional plans, the automatic electoral vote or
"non-elector" plans, and, lastly, a combination of these four.
The direct election plan, recently passed by the House of Repre-
sentatives, 33 would abolish the electoral college and electoral vote
altogether and would provide for the election of the President
and the Vice President by a majority of the total popular vote in
the country. In the event no candidate received at least 40 per-
cent of the vote, a run-off election would decide between the two
pairs of candidates who received the greatest number of popular
votes. The House-passed proposal would thus eliminate electors,
the electoral college and the unit rule, and the throwing of the
election into Congress.
The district plan, formerly known as the Mundt-Coudert Plan,
would preserve the Electoral College but would eliminate the
present procedure of giving a state's entire electoral vote to one
candidate. Electors would be chosen by the voters, one for each
district in every state, and in addition, two for each state at large.
Before election the electors would have to pledge to support their
party's candidates, a binding pledge. These electors would vote
and the candidates who received the highest number of such elec-
toral votes would be President, providing he had a majority; fail-
ing a majority, the Senate and the House, meeting jointly, would
elect a President from the top three candidates.
The proportional plan, formerly referred to as the Lodge-
Gossett Plan, 34 would abolish the Electoral College, but would
retain the electoral vote. The electoral vote in each state would
be apportioned among the Presidential candidates in accordance
with the number of popular votes they receive, so that the candi-
date who received a plurality of the popular votes would not re-
ceive the state's entire electoral vote as he would under the pres-
ent system.
The "automatic" electoral vote plan would also abolish the
office of elector but retain the electoral vote of each state. Under
this plan, however, the entire electoral vote of each state would
be automatically awarded to the candidate receiving the greatest
number of votes for President in that state (as it is at present).
The "mixed" or MacGregor plan, devised in 1969 by Repre-
sentative Clark MacGregor (R.-Minn.), would have electoral
votes counted for all presidential candidates as under the proper-
The Electoral Process and the Public Will 157
tional scheme. However, if the high man did not receive 50 per-
cent or more of the electoral vote, the decision would shift to the
popular vote. If the high man did not get at least 40 percent of
that, the President would be chosen by the Senate and House in
joint session, with each member casting one vote for one of the
two top candidates.
CONCLUSION
The procedures of our nominating conventions are currently
undergoing substantial reforms. Other problems like campaign
financing and the electoral college system lack effective solutions
at this time (though the recent action by the House may signal
the beginning of the end for the electoral college).
The events of 1968 perhaps exaggerated the degree of disen-
chantment of the American people with their political institu-
tions, but some changes in the electoral process clearly are neces-
sary to retain the confidence of the people in the system. The
situation could be labeled "urgent". Many groups, especially the
young and the blacks, want a more effective voice in the political
process. The process of reform must continue if the promise of
democracy, equality, and participation is to be kept.
REFERENCES
1. Alexander M. Bickel, The New Age of Political Reform The Electoral
College, the Convention, and the Party System (New York: Harper &
Row, 1968), at 21.
2. Vladimir O. Key, Politics, Parties, and Pressure Groups (New York:
Thomas Y. Crowell, 1964), at 431.
3. Id.
4. See Denis Brogan, Politics in America (New York: Harper, 1954), at
194; and J. S. Chase "The Emergence of the National Nominating
Convention", (unpublished Ph.D. thesis, University of Chicago, 1962),
at 11; and Theodore J. Lowi, "Party, Policy and Constitution in
America," in William Chambers and Walter D. Burnham, eds., The
American Party System Stages of Political Development (New York:
Oxford University Press), 1967.
5. Chase, id. at 100.
6. Brogan, supra note 4, at 66.
7. Charles E. Merriam and Louise Overacker, Primary Elections, A Study
of the History and Tendencies of Primary Election Legislation (Chi-
cago: University of Chicago, 1928), at 4.
8. J. W. Davis, Presidential Primaries: Road to the White House (New
York: Crowell, 1967), at 15.
9. Merriam, supra note 7, at 29.
10. Ernst C. Meyer, Nominating Systems: Direct Primaries Versus Con-
ventions in the United States (Madison, Wis.: published by the author,
1902), at 97.
11. Davis, supra note 8, at 27.
158 Report of the Task Force on Law and Law Enforcement
12. Id. at 28.
13. Id. at 30.
14. Donald G. Tacheron & Jill Spier, A National Presidential Primary?
Presidential Primary Legislation in Congress: 1945-1968 (Washington,
D.C.: The Library of Congress, Legislative Reference Service, Nov.
20, 1968), at 49-57.
15. 1964 Proceedings, at 30-31.
16. Report of Committee on Credentials Adopted by 1968 Democratic Na-
tional Convention.
17. Resolution 12 adopted by the Democratic National Convention, 1968.
18. Report of Committee on Credentials, supra note 16.
19. Quoted in Austin Ranney and Willmore Kendall, Democracy and the
American Party System (New York: Harcourt, Brace & Co., 1956),
at 315.
20. James M. Perry, The New Politics (New York: Potter, 1968), at 7.
21. These are: American Bar Association, American Medical Association,
American Petroleum Institute, American Iron and Steel Institute,
Association of American Railroads, Business Advisory Council, Chiefs
of Foreign Missions and Special Missions, Manufacturing Chemists
Association, National Association of Electric Companies, National
Association of Manufacturers, National Association of Real Estate
Boards, National Coal Association, and Chamber of Commerce of the
United States.
22. Reported contributions :
Year Republicans Democrats Miscellaneous Total
1956
$741,189
$8,000
$2,725
$751,014
1960
425,710
63,255
2,500
493,465
1964
200,310
225,790
4,618
468,218
23. When it came to spending tax-deductible corporate funds to benefit
the party in power, the top defense contractors were more generous.
In 1965, eleven of the top 25 defense contractors of fiscal year 1965
bought full page advertisements, at $15,000 per page, in the Democrats'
political advertising book, Toward an Age of Greatness. Not long
afterwards, the Congress forbade corporations from claiming tax de-
ductions for the expense of ads in political program books. Herbert E.
Alexander, Financing the 1964 Election (Princeton, N.J. : Citizens' Re-
search Foundation, 1966), at 99-104.
24. Because the Democratic incumbent was available for reelection, Demo-
cratic candidates spent very little at this stage of the campaign, though
reportedly more than $600,000 was expended in the primary campaigns
by and against George Wallace.
25. Estimated at 300,000 persons prior to 1964 Republican Convention;
McCarthy estimates are perhaps half that number for 1968.
26. K. McKeough and J. Bibby, The Costs of Political Participation: A
Study of National Convention Delegates (Princeton: N.J. : Citizens'
Research Foundation, 1968), Table 4, at 85.
27. Existing federal requirements concerning disclosure of campaign
funds are essentially the same as those enacted by the passage in 1925
of the Corrupt Practices Act. Reports of receipts and expenditures
must be made not only by candidates for the House or Senate, but
also by any interstate committee which seeks to influence federal
elections and by any person who spends more than $50 a year to
influence federal elections in two or more states. These reports are
open for public inspection.
28. U.S. President's Commission on Campaign Costs, Financing Presiden-
The Electoral Process and the Public Will 159
tial Office Campaigns (Washington, D.C.: Government Printing Office,
April 1962), at 17-20.
29. Minn. Sess. Laws 1955, c. 775, amending Minn. Stat. Sec. 290.09, 290.21,
1953.
30. John Hope Franklin and Isidore Starr, The Negro in Twentieth
Century America (New York: Vintage Books, 1967), at 373.
31. United States Commission on Civil Rights, Political Participation
(Washington, D.C.: Government Printing Office, 1968).
32. Brooke, Mass.; Clay, Mo.; Chisholm, N.Y.; Conyers, Mich.; Dawson,
111.; Diggs, Mich.; Hawkins, Calif.; Nix, Pa; Powell, N.Y.; and Stokes,
Ohio.
33. See Cong. Rec. H8142-43 (daily ed. Sept. 18, 1969).
34. After the then Senator H. C. Lodge (R.-Mass.) and Representative
Ed Gossett (D.- Tex.).
CHAPTER 8
CONGRESS AND THE PUBLIC WILL*
In 1790, when the United States was trying out its new form
of government, the average U.S. Senator represented 220,000
people, the average U.S. Representative only 37,000 people.
Nearly a half century later, in the Jackson-Adams presidential
contest of 1824, only 356,000 votes were cast, less than half the
present day population of the District of Columbia. As late as
1900, the average Congressman represented less than 200,000
people. The citizen, of course, also voted for state and town or
city legislators representing even fewer numbers. Today, how-
ever, the average Congressman represents twelve times as many
constituents as he did in 1790. Yet the American Congress is
still supposed to be uniquely responsive to the will of the people.
Our form of government requires that the national legislature
maintain a direct and intimate working relationship with the
people and that Congress remain open and accessible. As the
Joint Committee on the Organization of the Congress asserted
in 1966,
The Congress ... is the only branch of the federal govern-
ment regularly and entirely accountable to the American peo-
ple. Indeed, it is the people's branch. Our constitutional sys-
tem is based on the principle that Congress must effectively
bring to bear the will of the people on all phases of the
formulation and execution of public policy. 1
The two houses of Congress are designed to embody the will
of the majority of citizens, insofar as that will is known or
expressed. In providing that Members of the House of Represen-
tatives should be chosen "by the people of the several states," the
framers of the Constitution left no doubt that they considered
that branch a popular body. 2 And while the Founding Fathers had
other ideas concerning the Senate, the history of the 17th amend-
ment (ratified in 1913) demonstrates that the Senate has also
This chapter was prepared by Judith Toth of Washington, D.C. based
in part on a research contribution by Prof. Roger H. Davidson, Department
of Political Science, University of California at Santa Barbara.
161
162 Report of the Task Force on Law and Law Enforcement
come to be viewed as essentially a popular institution. Strong
public pressure expressed through the House of Representa-
tives, state governments, pressure groups, petitions, and refer-
enda succeeded in amending the Constitution to provide for the
popular election of Senators. Only in a secondary sense, perhaps,
do members of that body represent political jurisdiction. 3
Opinion polls of the past few years indicate, however, that
large segments of the American people do not see Congress as
responsive to the public will. In the past five years, public sup-
port of Congress has fluctuated widely. During the legislative
stalemate of President Kennedy's administration, only 35 percent
of a national sample of adults gave Congress a favorable rating.
For those expressing a negative judgment (51 percent of the
sample), the chief irritant was the dilatory handling of law-
making. Three major unpassed proposals civil rights, medicare,
and aid to education were frequently cited as examples. 4
After President Kennedy's assassination, the long "honey-
moon" between President Johnson and Congress unblocked major
legislation in many fields. Public support for Congress soared,
and late in 1965 it stood even higher than support for the Presi-
dent. Congressional action on legislation drew most of the favor-
able judgments : "passed a lot of bills," "passed civil rights bill,"
"made progress," and "supported President" were comments
volunteered by citizens. 5 As crisis again gripped the nation,
however, public support fell. According to a survey late in
1967, 41 percent gave Congress a favorable rating and 59 per-
cent a negative rating. 6 This time, however, there was a close
parallel between public ratings of the President and Congress,
indicating that the dissatisfaction, unlike the situation in 1963,
may have been part of a generalized alienation from the political
process.
Periodic exposes of wrongdoing by individual members of Con-
gress (or congressional employees, as in the case of Bobby Baker)
also produce public dissatisfaction and encourage general cyni-
cism about Congress. Reactions to the Dodd and Powell cases
were extremely negative, many citizens professing at the time
to believe that many Senators and Representatives were guilty
of similar activities. 7 Disturbingly, cynicism prevails especially
among better educated citizens. Such attitudes are not confined
to the intellectual community, however, where it has long been
fashionable to view the foibles of Congress with considerable
condescension an attitude which may perhaps decline as the
universities themselves enter upon a period of institutional
suffering and new self-examination. The findings of the opinion
surveys represent the judgments of millions of citizens of all
walks of life.
How, then, does Congress respond to the public will and how
Congress and the Public Will 163
does that response work in practice by means of seniority and
the committee system, by the filibuster, and by the lobbies? And
does the majority of Congress respond to external public de-
mands, or to its own majorities? 8
SENIORITY AND THE COMMITTEE SYSTEM
Congressional government, Woodrow Wilson declared long ago,
is committee government. " Congress in session is Congress on
public exhibition, while Congress in its committee rooms is Con-
gress at work." 9 Standing committees enable Congress to di-
vide labor on substantive issues and encourage individual legis-
lators to develop expertise concerning matters handled by their
committees. Most committees further divide into subcommittees
to permit even more specialized consideration of problems with
the attendant benefits of expertise and the publicly visible asso-
ciation of members with particular issues. Since congressional
government to a large extent means government by standing
committee, the selection of committee chairmen and members,
and the procedures followed by committees, are matters of funda-
mental importance.
Committee assignments are made by the party organizations.
House and Senate Republicans and Democrats employ slightly
different procedures in making assignments. In the Senate, the
Democratic Steering Committee and the Republican Committee
on Committees handle assignments. House Democrats rely on
their members on the Ways and Means Committee, who are
chosen to reflect balance among regions and factions. The House
Republican Committee on Committees includes one member from
every state having a Republican representation ; but because each
member casts votes equivalent to the number of Republican Rep-
resentatives from his state, pivotal decisions are in the hands of
members from states such as New York, Ohio, Illinois, and
California, that have large Republican delegations.
Initial committee assignments are made in accord with a vari-
ety of considerations e.g., the wishes of the committee chair-
man, the need for political or geographic balance on a committee,
the relevance of the assignment to the member's background or
constituency but especially on the basis of seniority. 10 Even
more delicate is the task of apportioning vacant committee posts
among incumbents who want to trade their initial assignments
for more desirable ones. 11 Elected party leaders exercise con-
siderable influence in drawing up the assignments, though in no
sense is their role controlling. While every assignment must be
ratified by the entire party caucus (or "conference," in the case
of Republicans), the committee on committees' recommendations
are seldom challenged.
164 Report of the Task Force on Law and Law Enforcement
Some committees deviate in significant respects from the
membership of the parent bodies. Agricultural committees over-
represent rural areas and interior committees overrepresent
the West because legislators from those constituencies tend to
volunteer to serve on them. These committees are thus weighted
in favor of producer interests, for example, and against those,
such as consumers, whose interests are less direct or intense
or at least are regarded to be so. Seats are especially coveted
on the most prestigious and important committees (like House
Rules, the two Appropriations Committees, Senate Finance,
House Ways and Means, and Senate Judiciary), and membership
accordingly gravitates to legislators of some seniority. Once
given an assignment, the individual legislator is considered to
have a right to his assignment for the duration of his tenure in
Congress, provided that it is uninterrupted by defeat at the polls.
(Infrequently, a junior member may be "bumped" from a com-
mittee if his party loses enough seats in the House in order to
justify changing the ratio of party members on the committee.)
Committee members advance by seniority (defined by contin-
uous terms of committee service), with the most senior majority-
party member being named chairman. This is the essence of the
much-debated "seniority system."
While the "rule" of seniority is almost never circumvented,
it is not a formal requirement, and the appointment of commit-
tee chairmen must be approved by the party's entire caucus. 12
Several recent precedents exist for caucus modification of senior-
ity privileges. In 1965 House Democrats removed the seniority of
two southerners who had supported the Republican Presidential
nominee, Barry Goldwater, in the 1964 election. The two men,
John Bell Williams of Mississippi 13 and Albert B. Watson of
South Carolina, were placed at the bottom of their committees'
seniority lists. Williams was second-ranking Democrat on the
Interstate and Foreign Commerce Committee, and the resignation
of the Committee's chairman within the year meant that the
caucus action had effectively denied him the chairmanship. (A
relatively junior member, Watson later changed his party affilia-
tion to Republican and has been reelected as such ever since.)
Two years later, House Democrats voted to rescind the seniority
of Representative Adam Clayton Powell, chairman of the Edu-
cation and Labor Committee; Powell had been investigated and
found by a House Committee to have misused House funds. The
most recent case arose in 1969, when House Democrats voted to
strip Representative John Rarick of Mississippi of his seniority
for having supported third-party candidate George C. Wallace in
the 1968 Presidential campaign. Rarick, a second-term Congress-
man, was lowest ranking Democrat on the Committee during the
Congress and the Public Will 165
90th Congress but would have moved ahead once a new crop of
freshman Democrats were appointed to the Committee.
Tampering with seniority is not, however, an everyday occur-
rence. In Powell's case, action was taken against a man who
not only was personally unpopular in the House and who had
engendered strong pressures for some form of disciplinary ac-
tion, but who had clearly embarrassed the body in the public
eye. In the remaining cases, the men had failed to support the
party's Presidential nominee.
No feature of congressional practices has drawn as much
criticism as seniority. The seniority system has undoubtedly
contributed to the unrepresentativeness of legislative leadership,
because longevity in office tends to be associated with homogene-
ous, one-party districts. 14 In the 90th Congress, for example,
southerners comprised only about one-fifth of the membership
of the Senate and a quarter of the membership of the House, yet
they controlled the chairmanships of ten of the sixteen Senate
standing committees and ten of the twenty-one House committees.
Such men are frequently at loggerheads with the policies of the
national party, a fact which can exacerbate conflict between Con-
gress and the Executive branch.
Middle-seniority legislators in particular often express impa-
tience at the seniority system's inability to make adequate use
of their talents and experience. Some reformers have proposed a
frontal attack upon seniority. Former Representative Thomas G.
Curtis (R.-Mo.), for example, long advocated rotation in office
a six-term limit in the tenure of all members. Representative
Morris K. Udall (D.-Ariz.), an outspoken advocate of reform, has
repeatedly suggested that each committee select its chairman
from among the three top-ranking majority members. Such pro-
posals seem to have little chance for adoption, however, in part
because the very seniority leaders most threatened by the pro-
posals have the most power formal and informal to prevent
their passage. 15
Other reformers, including long-time Representative Richard
Boiling (D.-Mo.), therefore express hope that party caucuses
could and would exercise their undoubted authority by refusing
to appoint chairmen who repeatedly deviate from stated party
policies. Boiling suggests that a Democratic Speaker (or Minor-
ity Leader) appoint the Committee on Committees and its chair-
man, all the party's members on the Rules Committee (including
the chairman or ranking minority member), and the chairman
of all other standing committees. Such choices would then be
ratified by the party caucus. Though seniority would probably
remain the most important criterion, Boiling believes, "the im-
implied threat of party discipline . . . would give pause to the
member who would bolt his party's program. 16
166 Report of the Task Force on Law and Law Enforcement
Yet, troublesome as the seniority system is, it is generally
conceded that no viable substitutes are at hand. However unrep-
resentative and inefficient, the use of the seniority system to
appoint committee chairmen serves to isolate and reduce a poten-
tially divisive set of decisions. Its very rigidity is no small virtue
in a conflict-laden institution such as a national legislature. 17
Defenders of the practice also point to the advantage of ensuring
that experienced members, and those who are relatively impervi-
ous to electoral pressure, are responsible for upholding congres-
sional prerogatives in dealing with the increasingly powerful
Executive branch.
Moreover, some of the criticism of the seniority system is
misdirected. As the Joint Committee on the Organization of the
Congress noted in 1966, "the power of the chairman is a more
fundamental issue in sound committee operations than is his
method of selection. 18 Though chairmen range from the ineffec-
tual to the dictatorial, they possess impressive formal and in-
formal powers. Most committee chairmen assume responsibility
for assigning bills to subcommittees, for selecting subcommittee
chairmen, for scheduling consideration of bills, for supervising
preparation of reports on bills, and finally for transmitting re-
ports to the Rules Committee. Most chairmen also assume full
responsibility for setting subcommittee jurisdictions, for dis-
tributing travel and other expense budgets, and for hiring com-
mittee staff members. "The committee member who has served
twenty years is not just five percent more powerful than the
member who has served 19 years," Republican Morris Udall (D.-
Ariz.) has observed. "If he is chairmen he is 1,000 percent more
powerful." 19
The legislative process has enough detours so that the chair-
man of a standing committee can tie up important items of legis-
lation for extended periods of time. The chairman may, or may
not, take junior committee members into his confidence as he
proceeds ; he may, or may not, consult minority members. Many
measures in education, welfare, urban affairs, and civil rights-
have been delayed or killed by unsympathetic committee chair-
men. And while majorities on the Senate or House floor may in
theory remove a measure from an intransigent chairman, the
procedural devices for accomplishing this remain clumsy and
difficult.
In reacting to abuses of the chairman's powers, a number of
committees have adopted rules of procedure which guarantee
committee members a part in making decisions. In recommend-
ing that such safeguards extend to all committees, the Joint Com-
mittee on the Organization of the Congress proposed a "committee
bill of rights" designed to insure that committee majorities have
Congress and the Public Will 167
an opportunity to work their will. As the Joint Committee ex-
plained :
The chairman is charged with a heavy responsibility and
should have authority commensurate with that responsibility.
It is unrealistic to suppose that a committee could operate
efficiently without allowing the chairman to propose the
committee's agenda, to participate in the selection of staff,
to assign members to subcommittees, and, in general, to
manage committee business. Nevertheless, the chairman is
the agent of the committee. The ultimate power does and
should rest with a majority of the committee itself. 20
The most feasible avenue of reform, the Joint Committee con-
cluded, probably lies in strengthening the majority rule in com-
mittees. At minimum, committee rules should guarantee majority
participation in calling meetings, transacting business, hiring
staff, and planning the agenda. Minority party members, by the
same token, should be assured adequate staff assistance (now
left to the discretion of the chairman) and at least some meaning-
ful role in framing the committee's agenda. The "committee bill
of rights" included in the 1967 legislative re-organization bill
would be a modest step in this direction. Passed by the Senate
in 1967, the bill met objections from the House Democratic lead-
ership, which kept the measure bottled up in the Rules Committee.
But reformers in the 91st Congress may be wearing down the
resistance of Congressional elders to a general reform bill the
first since 1946. This bill aims particularly at curbing arbitrary
actions by the powerful committee chairmen. Besides requiring
written procedural rules for all committees, thus opening more
avenues for a committee majority to override a chairman, the
changes would: (1) restrict proxy voting by absent committee
members, a device that now allows some chairmen and other
senior members to control absentees' proxies to use as they
wish; (2) give members of the minority party the right to hire
some committee staff assistants of their own ; (3) open committee
meetings to the public, with a few exceptions, and allow radio
and TV coverage of open hearings (the House now generally
forbids broadcasting, and its Appropriations Committee, for one,
holds almost all meetings behind closed doors) ; and (4) require
public disclosure of all committee votes. 21
THE SENATE FILIBUSTER
Perhaps the most celebrated facet of "minority rule" is the
Senate's practice of tolerating "extended debate," or filibuster,
to talk a measure to death. In contrast to the House, where debate
is rigorously controlled, Senate Rule 22 makes it exceedingly diffi-
168 Report of the Task Force on Law and Law Enforcement
cult to close off debate if a few Senators wish to forestall a
vote. A petition must be signed by 16 members, and then the
issue of cloture is brought up two days later. Two thirds of the
Senators present and voting must agree to cloture, after which
each Senator still has up to one hour to speak on the issue at hand.
Every two years opponents of the filibuster regularly seek
to strengthen the cloture provision usually proposing to reduce
the required votes from two thirds to a simple majority. Several
times the Senate has come close to revising Rule 22, but the issue
remains procedurally clouded by the question over whether or
not the Senate is a "continuing body" and thus has continuing
rules. The notion of continuity attracts more support than the
substance of Rule 22 itself and has, thus far, prevented change. 22
In 1957, however, the President of the Senate, Vice President
Richard M. Nixon, suggested a rationale whereby a majority
of Senators could act upon rules changes without doing violence
to the notion of the Senate as a "continuing body." In an informal
advisory opinion rendered as President of the Senate, Mr. Nixon
pointed out that, under the Constitution, each house has the right
to "determine the rules of its own proceedings." 23 Because this
right derives from the Constitution itself, it should not be re-
stricted or limited by rules adopted in a previous Congress. Thus,
he concluded, in each new Congress a current majority has the
right to adopt its own rules. 24 Though Mr. Nixon's ruling was
only advisory, retiring Vice President Hubert Humphrey actually
made such a ruling in 1969, in the early days of the 91st Con-
gress. But his ruling was explicitly rejected by a Senate vote
again demonstrating the appeal of the "continuing body" concept,
quite apart from the filibuster issue itself.
One factor that bears upon the Senate's failure to eliminate
the filibuster is the infrequency of its use. (Normally, Senate
debate is closed by unanimous consent agreements.) Yet these
few occasions have been deeply significant, since the major use
of the filibuster in modern times has been to defeat civil rights
legislation. For decades a southern minority, standing behind
Rule 22, prevented effective and moderate action on civil rights.
Only mass freedom marches, police dogs, and fire hoses, and the
murder of civil rights workers, made possible the invocation of
cloture to pass the Civil Rights Act of 1964 and the Voting
Rights Act of 1965. The Civil Rights Act of 1968, which con-
tained prohibitions against discrimination in the sale or rental
of housing, was enacted when, after three unsuccessful attempts,
the Senate finally voted cloture by the two-thirds vote required.
Defenders of the present cloture arrangement one that has
been successfully invoked less than 10 times in the four decades
of its existence argue that it promotes freedom of debate, which
is a cherished Senate principle. Allowing a majority of Senators
Congress and the Public Will 169
to close off debate would, they maintain, impair the deliberative
function and render the Senate a mere copy of the House of
Representatives, where legislation can be "gaveled" through
briskly with only limited debate. Free, unhurried deliberation also
permits small numbers of Senators who feel deeply on issues to
make last-resort appeals to the court of public opinion. "It takes
a good many weeks to inform the electorate in a country of 195
millon," the late Senator Everett M. Dirksen observed in defend-
ing the filibuster in 1967. 25 If a few more votes are needed and a
realistic chance exists of obtaining them by persuasion, com-
promise, or public pressure the filibuster can, it is argued, serve
as a useful parliamentary tool.
The filibuster has been used in the past to obstruct legislation
which, in retrospect, would have been destructive to individual
freedom. An outstanding example is the filibuster during World
War II against the Forced Labor Bill which would have frozen
people in their jobs for the duration of the war. There have been
many other cases where a filibuster, or the threat of one, was a
tactic in a "liberal" rather than a "reactionary" cause. And just
the threat of a filibuster can be enough to keep legislative action
off the floor of the Senate (as in the case of the nomination of
Abe Fortas as Chief Justice in 1968).
On the other hand, the present provisions of Rule 22 are at
odds not only with the practice in the House of Representatives,
but also with general principles of parliamentary law, early
Senate procedures, and (almost without exception) parliamentary
practice in legislatures throughout the English-speaking (and
even most of the non-English-speaking) world. Only in the
Senate of the United States, observes Senator Clifford P. Case
(R.-N.J.), must an opposition be beaten down by "physical ex-
haustion" and "the medieval practice of trial by ordeal still
survives." 26
Even if the cloture rule were strengthened to allow a simple
majority to end debate, the right of the minority indeed, of all
Senators to state their case would not necessarily be curtailed.
The present cloture rule, once invoked, permits each Senator as
much as one hour to speak on the substantive issue at hand.
Thus, as many as a hundred hours of debate remain, even after
cloture has been invoked. The vote required for cloture could be
changed without changing the amount of time for debate between
the voting of cloture and the vote on the substantive issue.
Proponents of the filibuster argue that no simple majority
should prevail over a substantial minority that feels deeply
enough about an issue to engage in "extended debate." Whatever
may be the abstract merits of this argument, it is increasingly
difficult to maintain it in view of the uses to which the filibuster
has been put. "In the specific case of legislation for racial equal-
170 Report of the Task Force on Law and Law Enforcement
ity," Robert Bendiner has noted, "involving the most fundamental
rights of a large minority of the nation's citizens, a plea for
filibustering in the name of minority rights tumbles into absurd-
ity altogether " 27
THE LOBBY
For as long as our government has existed, people have banded
together to give strength to their special interests by participating
in pressure groups, or "lobbies." Pressure groups act out their
special role in the democratic process at all levels of government,
but most notably, perhaps, in relation to the Congress. Some
groups are based on grass roots issues like "gun control" or "tax
reform." Some are employment-oriented groups like labor unions.
Some are purely economic big businesses and small businesses,
each looking out for their own particular interests. There are
veterans' lobbies, church lobbies, lobbies for humanitarian causes.
There are even lobbies for foreign governments or firms.
Lobbying is protected by the First Amendment to the Con-
stitution the right to petition the government for redress of
grievances. No one is disposed to tamper with or restrict this
right. Like the other First Amendment rights of free speech and
free assembly, there can be abuse of the freedom guaranteed to
petitioners to Congress, but this potential for abuse does not, in
any case, demonstrate that the right does not or should not exist.
Nonetheless, a growing sentiment insists that lobbies are cor-
rupt or corrupting. Time and again front page stories break
on attempted bribes of government officials by lobbies, or of cam-
paign contributions by persons interested in influencing the legis-
lative policies of elected officials. Although these cases are the
sensational and exceptional, they deeply disturb the faith of the
electorate in their government. All too often, it seems to many
people, only monied interests are effectively heard in the halls
of government. Despite examples of victories of an aroused citi-
zenry over big business, as in the case of the passage of the
antitrust laws, or big labor, as with the Taft-Hartley Act, many
feel that government is too big to listen to the "little" man.
The Congress is not unaware of the problems of lobbies. The
Federal Regulation of Lobbying Act of 1946 requires lobbyists
to make periodic public disclosure of the sources and purposes of
their employment and the amount of their compensation. Thus
it seeks to guard against those who would influence legislation
clandestinely or from hidden motives, while not hindering those
who wish openly and frankly to advocate their views to the Con-
gress. Further strengthening of full disclosure laws of this type
is much to be desired.
Perhaps the most fundamental problem of the lobby -is that
Congress and the Public Will 171
minority groups (such as poor whites, Indians, blacks, etc.) are
unorganized groups which have no lobby. Often they are outside
the political process. If and when they try to enter, it requires
monumental effort. Until the civil rights movement, many of
these people but especially Negroes had little or no influence
in the legislative chambers of this country. Even now, it takes
the combined interest and money of the "enlightened" middle-
and upper-classes, plus the tremendous outpouring of time and
energy by black leaders, to sustain the movement toward black
dignity and equality.
When the poor do get organized, as was ostensibly done in
the summer of 1968 with the Poor People's March to Washington
and the building of Resurrection City on the Mall near the Wash-
ington Monument, they constitute a powerful voice. That demon-
stration focused attention on their plight: the crusade against
hunger in the United States now going on in Congress probably
has come about as a direct result of the activities of this par-
ticular "lobby." Nonetheless, those segments of our population
most alienated from the system have in general the least likeli-
hood of organizing and effectively influencing government
through their lobbies.
Our legislative process works when enough people want some-
thing badly enough to try to influence the legislators directly
or through their groups ; then something is usually done. If there
is an effective and equally potent counterforce, then at least a
compromise is obtained.
The gun control movement of 1968 offers a good example. After
the assassinations of Martin Luther King, Jr., and Robert F.
Kennedy, a tremendous outpouring of support thundered for
strong gun control legislation in this country. Influence was ex-
erted upon Congress by large numbers of individuals writing
directly to their Representatives and Senators, by organizations,
both small and large, and through ad hoc groups like the Emer-
gency Committee for Gun Control and the Committee for More
Effective Firearms Control. This movement was countered by
letters from individuals against strict gun control, from local
gun clubs and organizations unsympathetic to gun control, and
from the massive effort of the National Rifle Association. The
result was a compromise bill which sought to satisfy both pres-
sure groups.
Similarly, there is now in evidence an accelerating grass roots
movement for comprehensive tax reform. Letters on tax reform
are flowing into Washington. Largely due to the 10 9f surcharge
appearing on the 1968 tax forms, there was, in the first 3 months
of 1969, an upsurge of mail to congressmen and to the executive
all seeking change in the present tax structure. Letters to the
Treasury Department and President in February alone number
172 Report of the Task Force on Law and Law Enforcement
1,930. 28 This figure represents the highest for this month or for
any other month for this type of mail since a count was started
in 1948 and there has been no letup. The press has taken up
the cause with numerous articles on the subject. And Congress
in 1948 and there has been no let-up. The press has taken up
is already reacting. But opposition is also getting organized,
and a compromise of some kind will undoubtedly be the result.
In cases such as these, lobbying clearly makes a positive con-
tribution to the American political process. A great deal of our
legislation gets initiated because some group has drawn attention
to the need for it. Lobbyists provide information and other serv-
ices which are welcomed by governmental decision-makers. If
information from lobbyists and lobby groups was, for some rea-
son, unavailable to officials, they would depend largely on their
own staff for information and ideas. The clash of viewpoints
between contesting groups is not only informative; it is also
creative. Lobby groups and lobbyists define opinion with a
sense of reality and specificity which political parties, the mass
media, opinion polls, and staff assistants seldom, if ever, can
achieve.
Lobbies, therefore, are necessary and useful, as well as in-
evitable. But just as some groups, such as the poor, do not have
effective lobbies : so also do some issues not have effective lobbies,
issues such as the reform of Congressional procedures.
CONGRESSIONAL REFORMS
Several reasons can be given on why Congressional reform
does not stimulate the formation of lobbies. For one thing, the
average citizen especially the average youthful reformer has
only an imperfect notion of what is wrong with the procedures of
Congress and only a marginal attachment to specific, realistic re-
form proposals. Opinion surveys show that the public wants
proposals for change; 29 but citizens lack basic information and
understanding about Congressional personnel or procedures.
Every opinion survey ever taken on the subject indicates that the
internal workings of Congress are a mystery to most Americans.
Nor are the issues of procedure likely to catch the public's
imagination in the foreseeable future. There is no instance within
recent memory of strong public demands for reform of the struc-
ture or procedures on Congress. Legislators may receive moun-
tains of mail asking for the censure of one Congressman (Adam
Clayton Powell or Thomas J. Dodd) ; they may perceive strong
public demand for breaking a specific filibuster (as in 1964 and
1965) ; but they hear relatively little from citizens concerning the
enactment of a congressional "code of ethics" or the revision of
the Senate cloture rule.
Congress and the Public Will 173
By the same token, opinion leaders have made little effort to
create a public issue out of congressional reform. Mass media
coverage of the problem is sketchy; and when newsmen deign
to pay attention to the issue, their approach is often narrowly
issue oriented or misdirected. Party platforms ritually pledge
action to "modernize" Congress (although the Democrats ne-
glected to mention the subject in 1968), but few politicians have
found the issue fruitful enough to warrant much emphasis. Thus,
there have been few efforts to raise public interest in reform.
Indeed, as former Representative Donald Rumsfeld (R.-I11.) has
remarked : "Congressional reform is an issue without a constitu-
ency."
This leaves reform of Congressional procedures for the short
run, at least to the Congressmen themselves. And so long as
there is little public clamor for change in Congress, it is unlikely
that sufficient numbers of Senators and Representatives will
be interested in "preventive maintenance" of the role of the
national legislature in our democracy.
A glance at the tangled history of the 1967 legislative reor-
ganization bill will serve to illustrate the point. 30 The Joint
Committee on the Organization of Congress was created in 1965
and devoted the better part of two years to hearing witnesses
and drafting its report. In 1967, the committee's omnibus reor-
ganization bill passed the Senate after 6 weeks of debates and
39 amendments (114 were proposed). The Senate-passed bill
(S. 355) offered useful, but certainly not revolutionary, changes
to tighten regulations on lobbying, to eliminate some patronage
appointments, and to improve the hold of Congress on appro-
priations measures. The heart of the bill was its "committee bill
of rights," already referred to.
Members of the Joint Committee were pleased with the Senate
vote, but they had failed to reckon with the objections of the
House leadership. Rather than referring the bill (S. 355) directly
to the Committee of the Whole House for deliberation, the
Speaker sent it to the Rules Committee, where it languished.
Rules Chairman Colmer (D.-Miss.) held hearings for part of one
day in April 1967, but held none after that. Rather than bringing
the bill to a committee vote, a process of private negotiations en-
sued in which the bill was stripped of key provisions. A number
of House members, including Representatives Boiling and Udall,
tried to rescue the measure, but the ultimate leadership-sponsored
version was described by Representative Madden, co-chairman of
the Joint Committee, as being "worse than nothing and would
postpone the reform movement for the next 15 or 20 years." The
leadership's version would have exempted House committees from
major elements of the "committee bill of rights" and weakened
the provision for minority staffing. It was partially this latter
174 Report of the Task Force on Law and Law Enforcement
issue that prompted a group of younger Republicans to charge
publicly that the House leadership was smothering the bill. A
group led by Congressman Rumsfeld staged a semi-filibuster on
the House floor in the closing days of the 90th Congress to protest
the bill's fate after the Rules Committee had voted in July 1968
to defer action on the bill indefinitely.
Advocates of the reorganization bill are increasingly confident
that during the 91st Congress the Senate will again pass such
legislation, if, as now seems possible, the House finally acts.
The Legislative Reorganization Act of 1969 (H.R. 2185) notably
avoids the issue of seniority, but it does call for a substantial
modification in the procedures of the standing committees. This
bill is a compromise which, although piecemeal, will do much
to update the internal operations of the Congress. Whatever the
outcome of this struggle, and whatever the merits of the posi-
tions of the various participants, neither lobbies nor direct public
pressure of any kind, it seems, will play a significant role. One
may wonder what might be accomplished in our nation if some
of the enthusiasm and energy now being poured into issues like
ROTC on the campus and separate facilities for black stu-
dents were redirected toward less dramatic, less emotionally
satisfying problems like the congressional committee system.
CONCLUSION
The first maxim of democratic parliamentary procedure, in
the words of the late Speaker of the House, Sam Rayburn, who
served in the post longer than any other, is that "a determined
majority can always work its will," whether in committee or
floor deliberation. 31 Even such an elitist as Alexander Hamilton
referred to "the fundamental maxim of republican government,
which requires that the sense of the majority should prevail." 32
Minorities must be accorded reasonable opportunities to present
their case to colleagues and to the general public ; but to allow mi-
nority rights to become the equivalent of minority rule is to frus-
trate one of the principles of government which gives our sys-
tem its legitimacy.
Like other important institutions of the political order, Con-
gress seriously needs procedural reforms to make it more respon-
sive to the will of its own members and, hence, to the public will.
The present crisis of confidence in our political institutions lends
added urgency to these needs. Ultimately, the future role of Con-
gress rests upon its ability "to stimulate continuous and critical
thinking about change before change is forced upon it." 33
Clearly, Congress must act to realize the substance as well as the
Congress and the Public Will 175
theory of majority rule, lest wide-spread public disaffection and
cynicism produce an irreversible attrition of public support for
Congress and the laws it enacts.
REFERENCES
1 U.S., Congress, Joint Committee on the Organization of the Congress,
Organization of Congress, Final Report, Joint Res. 2, 89th Cong., 2d sess.,
1966, at 1.
2 Art. 1, Sec. 2. See Wesberry v. Sanders, 376 U.S. 1 (1964) ; Welles v.
Rockefeller, 394 U.S. 542 (1969).
3 The movement for direct election of Senators is chronicled in detail in
George Havnes, The Senate of the United States, Its History and Practices
(Boston: Houghton Mifflin, 1938).
4 Louis Harris and Associates, Washington Post, Jan. 6, 1964, at A-l.
5 Louis Harris and Associates, Washington Post, Jan. 4, 1965, at A-l.
6 Louis Harris and Associates, Washington Post, Jan. 22, 1968, at A-2.
7 Louis Harris and Associates, Washington Post, May 8, 1967, at A-2.
8 J. Sundquist, Politics and Policy The Eisenhower; Kennedy, and
Johnson Years (1968), at 513.
9 Woodrow Wilson, Congressional Government (New York: Meridian
Books, 1956), at 69.
10 I.e., a member's wishes are normally granted in direct relation to
the seniority he has amassed.
n See Nicholas A. Masters, "Committee Assignments in the House of
Representatives," American Political Science Review 345-357 (June 1961).
12 See, for example, John F. Bibby and Roger H. Davidson, On Capitol
Hill: Studies in Legislative Politics (New York: Holt, Rinehart & Winston,
1967), at 153-169.
13 He was elected governor of his state in November 1968.
14 George Goodwin, "The Seniority System in Congress," American
Political Science Review 412-436 (June 1959); Raymond E. Wolfinger and
Joan Heifetz, "Safe Seats, Seniority, and Power in Congress," American
Political Science Review 337-339 (June 1965).
15 Roger H. Davidson, Davie M. Kovenock, and Michael K. O'Leary,
Congress in Crisis: Politics and Congressional Reform (New York: Haw-
thorn Books, 1967), at 100-103.
16 Richard Boiling, House Out of Order (New York: E. P. Dutton, 1964),
at 241.
i? Nelson W. Polsby, " 'Seniority System' Isn't All Bad," Los Angeles
Times, Sept. 20, 1968, at II, 5.
18 U.S. Congress, Joint Committee on the Organization of the Congress,
Organization of the Congress, Final Report, Joint Res. 2, 89th Cong., 2d sess.,
1966, at 9.
19 Quoted in Larry L. King, "Inside Capitol Hill : How the House Really
Works," Harper's, Oct. 1968, at 67.
20 Id.
21 Norman C. Miller, "Updating Congress," Wall Street Journal, Mar. 27,
1969, at 1.
22 As long as the Senate considers itself a "continuing body" (unlike the
House, which must organize anew every two years), then rules which are
previously in force govern consideration of new rules changes. Hence, the
biennial proposals for weakening the filibuster are themselves subject to
filibuster.
176 Report of the Task Force on Law and Law Enforcement
23 Art. I, Sec. 5.
24 Congressional Quarterly Weekly Report, Jan. 13, 1967 at 41.
25 Quoted in Lindsay Rogers, "Filibuster Debate," Reporter, Jan. 8, 1959,
at 21. Pros and cons of unlimited debate are discussed in George B. Galloway,
The Legislative Process in Congress (New York: Thomas Y. Crowell, 1953),
at 564-570.
2 6 Robert Bendiner, Obstacle Course on Capitol Hill (New York: McGraw-
Hill, 1964), at 113-114.
2 ?/d.
28 Treasury Department, Office of Tax Analysis.
29 American Institute of Public Opinion, surveys in 1964, 1966, 1967, and
1968.
30 Progress of the bill is summarized in Congressional Quarterly Weekly
Report, June 9, 1967, at 975-978.
31 Quoted in Congressional Quarterly Weekly Report, June 7, 1963, at 87.
32 Benjamin Fletcher, ed., The Federalist (Cambridge: Belknap Press,
1961).
33 Davidson, Kovenock, and O'Leary, supra note 15, at 170.
CHAPTER 9
THE FAMILY AND VIOLENCE*
The family is the oldest institution, the basic unit of society,
and certainly one of the most, if not the most, important hu-
man institution. Entire civilizations have survived or dis-
appeared, depending upon whether family life was strong or
weak. Every society needs a family to produce children and to
continue the human race; to provide for the protection and
early training of infants; and to establish a division of labor
in the ongoing challenge of survival.
During our lifetime, we ordinarily belong to two families
the first when we are children, the second when we are par-
ents. One we are born into; the other we establish ourselves.
These two experiences represent life's major activity from birth
to death.
The American family has clearly lost some of its solidarity,
however. Once it was the source of cohesion and security, the
unit of economic activity, the means of recreation and educa-
tion. Today it is increasingly disrupted. Divorce rates rise, but
are outrun by the incidence of marital conflicts. Parents, espe-
cially working mothers, spend more time outside the home,
and television changes the character of family recreation. A
generation gap widens, as young people identify more with
peer groups in colleges, dropout communities, and street cul-
tures than with their own families.
These changes do not necessarily signify a decline in the im-
portance of the family. They do reflect the increasing pres-
sures which the family is under but these stresses frequently
stem precisely from the fact that more is being demanded of
family life than ever before. Thus, as urbanization depersonal-
izes human relationships, husbands and wives become more de-
pendent upon each other for the satisfaction of emotional needs
that were previously met outside of the family. And, despite
*This chapter was prepared by James S. Campbell on the basis of a
paper submitted by Shlomo Shoham, Director of the Institute of Criminal
Law and Criminology, Tel-Aviv University, Israel, and on materials made
available to the Task Force by Commissioner W. Walter Menninger, M.D.
177
178 Report of the Task Force on Law and Law Enforcement
the impact of television, the family manifestly retains its cen-
tral role in the upbringing of children.
The family is, after all, the primary channel through which
human culture is transmitted to the young of the species. The
family and the home are the first molding cast for a child's be-
havior and the basic unit for the child's "socialization." Values
are inculcated by example, teaching and interaction. 1 It is the
function of the family to transmit to the children what the
prescribed, permitted and proscribed values of the society are,
as well as to indicate what are acceptable and unacceptable
means of achievement. In a culture, for instance, where violence
in a commendable pattern of masculine behavior, the education
of children in the family will include a permissive attitude to-
ward violence. Conversely, if a society or distinct class within
it prohibits over-aggression, the family experience will direct
the children toward the solution of conflicts by other than violent
means.
The crucial role of the family in disposing a child to violence
or non-violence is generally accepted. Whatever be the heredi-
tary predisposition and the biological factors contributing to a
child's development, the patterns of behavior of the child are
largely established by his early life experiences. Any observa-
tion of young children reveals the potential for aggressive be-
havior, destructive behavior, temper tantrums, and the like.
It is the challenge to the family to orient or socialize these crea-
tures to a principle of operation whereby their impulses of a
socially unacceptable nature are controlled.
Of course, the ultimate development of any individual and
his ultimate violence-proneness are the result of many factors.
Crime and violence are the result of a complex interaction of
individuals' biologies and life experiences. Criminologists have
identified specific characteristics often associated with crime
and violence, including social disorganization, cultural conflict
resulting from migration, highly packed urban living, pov-
erty, and other important elements. Nevertheless, despite the
importance of these other factors, the family remains the first
socializing agency to which the human being is exposed in the
crucial formative years of his life. What, then is the ability of
the family unit to instill a restraining, normative barrier against
violence within the personality framework of the child?
FORMATION OF THE CHILD'S MORAL PERSONALITY
Personality growth and development is a complex process.
The infant in the beginning does not have any conception of
the values as expressed by society. The infant after birth is
motivated by some basic drives to survive and to achieve
The Family and Violence 179
satisfaction and relief of tension through the satisfaction* of
bodily needs. In addition, there are some basic psychological
needs which include mothering, without which the infant will
waste away. But the infant has no real conception or under-
standing, or capacity to understand in adult logic what is hap-
pening about him, or what the consequences are of his behavior.
The early years of life are occupied with the maturation and
growth of all the organ systems and the beginning mastery of
body skills; i.e., learning to grasp, sit, walk, talk, control body
processes. The discipline and control of children as they first
develop these skills of body control and locomotion depend
entirely upon the parents. The child of two or three has no
specific moral controls, no sense of right or wrong except in
terms of a self-related reference. Something is right if it pro-
vides for his satisfaction and pleasure or relief of tension;
something is wrong if it hurts him or causes pain. His response
to something wrong is to attempt to retaliate or protest mightily.
The basic moral law of the young child might be expressed in
terms of the lex talionis, or an eye for an eye: "When I hurt,
I want you to know I hurt, and I want you to hurt like I hurt.
Therefore, if you hit me, I'll hit you back."
Self-centered behavior of this character makes for anarchy,
and increasingly, as the child grows, parental discipline sets
certain limits. Gradually, the child learns that he cannot al-
ways have what he wants when he wants it, and that there
must be respect for other people if only for the reality that
he is going to be hurt when he transgresses acceptable limits.
The child tends to absorb within his personality the standards
of those about him, with their "norms" (rules) for violence as
well as other kinds of behavior. This process of socialization, in-
corporating the parental and social values, is a process that
evolves in varying degrees over the period of childhood. The ini-
tial absorption is in a concrete and mechanical sense; the child
complies with parental rules because the parents have the au-
thority to back up those rules. In due course the child achieves
an autonomous ethical system, tested through a process of trial
and error, by which he weighs his conduct according to his
own inner standards. 2
Sigmund Freud, from his clinical observations, noted a crucial
period in the incorporation of an inner value system in the
child around the age of 5 or 6. This he related t<" t^p Drocess
of the child's forming a more specific sense of identity as a
boy or a girl, a process which also involves the child's de-
veloping a sense of his role in the family. Freud also related this
development to his observation of a process he characterized as
the oedipal complex. Simply stated, the boy who has up to this
point selfishly wanted to have the mother all to himself, is forced
180 Report of the Task Force on Law and Law Enforcement
to recognize that father has the inside track. Father is too big
to be conquered in this competition, and therefore the young
boy in effect operates on the principle that "if he can't beat
'em, join 'em." In other word*, he fives u" competing with the
father for mother, and instead identifies with father and makes
father's values a part of himself. A comparable process takes
place in the young girl. Essentia'ly, it is at this period of time
that the child does develop an inner sense of rules, a conscience,
a sense of right and wrong, and will then manifest some inner
control which is not just related to parental correction.
This is a continuing process that is refined as the child grows
older, and it reoccurs significantly during adolescence as the
young person retests society's rights and wrongs, and through
social-role experimentation works toward establishing an iden-
tity as an adult.
In adolescence, sometimes, the adult values have to be chal-
lenged and tested in order for the individual to prove that he
has separate identity and is capable of independent action.
This challenge to adult values may be done by an individual
adolescent, but it is more commonly experienced as adolescents
join together in groups or gangs. The gang membership pro-
vides a sense of security and strength in numbers which per-
mits a youth to act in a way that he could not act on his own. 3
The gang in this sense, or the "street culture" as it has been
called, provides a challenge to the family unit, but does so while
rep ] acing the family security with gang security and in estab-
lishing simple and consistent norms where values are sharply
defined in black and white, without ambiguities.
Adolescence, then, is a period of development crises, which
if not overcome may result in a predisposition to crime, vio-
lence, or deviance. This is not unlike the childhood diseases
which everyone has to pass through but from which serious
complications can arise. If the socialization in the family prior
to or within this critical period has been faulty, there will not
be any strong and clear normative barriers against delinquent
solutions to life problems.
Jean Genet, the thief, playwright and philosopher, de-
picts with devastating sincerity the development of a crim-
inal. Genet was born out of wedlock. His mother aban-
doned him in his cradle, and he was cared for in his for-
mative years by an orphanage, which in due course en-
trusted him to a foster home, a peasant family in Le
Morvan. He soon realized that he was not like the other
village youngsters. He was a foundling, with no mother,
no father, and therefore no clear identity to internalize.
The village was a close community, and he soon found out
The Family and Violence 181
that in the peasant family he was "Jean, the little bastard,"
the receptacle for all the residuary, unwanted and despised
attributes of the family and the small peasant community.
When Genet commits a crime, he complies with the ex-
pectations of his immediate environment. This in itself is
satisfying. He is no more Jean the nameless bastard, he is
Jean the thief. Moreover, the newly found criminal self-
image is a course of strength and achievement: compliance
with the image of a criminal gives Jean an individual iden-
tity. Further, it makes him eligible for the group of other
thieves and homosexuals, affording thus the opportunity
for identification with a group and a sense of belonging.
SOCIALIZATION IN THE FAMILY.
The general scheme of socialization in the family may be
presented as a "norm-sending" process by which the father, for
example, transmits the rules of behavior to the family mem-
bers. This process may be divided for clarity's sake into three
phases :
(1) Statement of rules: the father in our case states the
desired behavior, verbally, by gestures, by some other mode
of communication, or by his own behavior as a model for
imitation.
(2) Surveillance: by the father (or other members of
the family) to ensure compliance to the rules.
(3) Sanctions: applied for the infringement of the rules
or for noncompliance to them.
The sanctions may be either negative in the form of punish-
ment for noncompliance with the rules, or positive in the form
of rewards for conformity to the rules. The child on the receiv-
ing end may conform to the norm for fear of punishment (sanc-
tion orientation) ; he may be induced to conform by the re-
warding sanction (identification) ; or he may absorb the norm
very deeply within his personality structure so that conformity
becomes "the right thing to do" (moral orientation). At this
deep level of internalization, where the norm becomes a per-
sonality element, surveillance and sanctions are essentially
superfluous. 4
The efficacy of the family norm-sending process and the
depth to which the child absorbs these controls can be the cru-
cial factor which tips the scale for or against violent behavior
by the child. It determines the degree to which the child has
internalized the restraining norm as a personality element and
hence the force of the pressures which would be necessary
to overcome or "neutralize" the restraining force of the norm
182 Report of the Task Force on Law and Law Enforcement
in order to commit an act of violence. Without taking into ac-
count the factor of socialization within the family (or family
surrogate), any explanation of violence (or any criminal, de-
viant or rebellious behavior) is bound to remain incomplete.
The starving Hindu has all the reasons (and all the pressures)
in the world to slay one of the holy cows that roam the streets
and fry himself a steak, but he would not dream of doing it
because of the deeply internalized religious norm forbidding
it. 5 The same idea is even more apparent in the actions of re-
ligious dissenters, "freedom fighters," and rebels throughout
the ages who have undergone extreme torture and death but
have not acted contrary to their deeply internalized sets of
norms. Research carried out in Israel on delinquent and violent
gangs sought to discover why some boys, not distinguishable
from the rest by socio-economic background, did not participate
in the gang's delinquent and violent activities but only in its
nondelinquent ones. The most significant differences between
the two groups of boys was the degree to which the norms
concerning the sanctity of private property and the nonuse
of aggression were internalized to form an initial barrier
against criminal and violent behavior. Similar differences aris-
ing from different family socialization patterns help explain why
even in the worst of slums plagued by poverty, bad living con-
ditions, criminal gangs, prostitutes, and dope peddlers, only
some boys become delinquent, whereas a far greater number re-
main law abiding.
Conflict situations, however, may make the whole process of
norm-sending ineffective, so that the norm is internalized by
the individual at a very shallow level or even not at all. Con-
tinuing conflicts in the norm-sending process may also injure
a set of norms that has already been previously internalized
bv the individual. The greater the intensity and extent of con-
flict situations in the socialization process, the greater will be
the shift away from moral orientation toward sanction orien-
tation, and from fully internalized rules to rules which are
followed only out of fear of being caught. At this state the nor-
mative barrier against a given crime or violent behavior is
completely shattered, and the crime then is only in being
caught and not in committing the offense.
Adolescence the crucial stage in the norm-receiving proc-
ess is characterized by, among other things, a yen for abso-
lute values and a desire for sharply defined roles. As described
by countless works of literature, youth is not only a seething
cauldron of idealism, but also passionately in favor of un-
equivocal statements of facts and rules otherwise known, by
the young themselves, as plain honesty.
The Family and Violence 183
Gobesque, Balzac's stingy old scoundrel, sits before the
fireplace with his teen-aged friend and promises him a
loan without guarantees, because up to twenty a person's
best guarantee is his age and 'because you, my young friend,
are idealistic, you visualize great ideas, basic truths and
beautiful Utopias while staring at the dancing flames. At
my age, however, we see in the fireplace plain burning
coal.'
Those youths whose socialization is most riddled with con-
flict situations are most liable to reject the offered adjustment
to contradictory, hypocritical, and confused sets of norms. If
this is adulthood, he prefers the more direct behavior and
clearly defined normative system of the delinquent subculture.
Because of his inability to internalize the contradictory norms
of the adult world, he may be branded as "infantile " "rigid,"
"a permanent adolescent," "a troublemaker," and thereby be
pushed further toward the values of his delinquent peers.
CONFLICTS IN THE SOCIALIZATION PROCESS
What are the kinds of conflict situations in the socialization
process within the family which can have harmful effects on
the creation of a normative barrier against violence ?
The family "broken" by divorce, death, or prolonged or per-
manent incapacitation of one or both parents was once con-
sidered a major cause of delinjuency, but research has revealed
that the broken home as such may not have the crucial signifi-
cance that was attributed to it.
Instead, continuous family tension and discord is a far more
important factor in delinquency than the actual divorce of the
parents. The rates of delinquency are significantly higher in
unbroken but unhappy and conflict-ridden homes tn^n in
broken ones. 6 Divorce may even lessen the chances of children
in a tension-laden family from becoming delinquent or vio-
lent. 7 A recent study published in Israel reveals that the most
significant factor linked with delinquency was lack of value
consensus among family members.*
Lidz observes that a child properly requires two parents: a
parent of the same sex with whom to identify and who provides
a model to follow into adulthood, and a parent of the opposite
sex who becomes a love object and whose love and approval the
child seeks in return by identifying with the parent of the
same sex. But, he notes, a parent can fill neither of his roles
effectively if he is despised or treated contemptuously by the
other parent. The child internalizes directives from both par-
ents and identifies to a greater or lesser extent with both; if
184 Report of the Task Force on Law and Law Enforcement
the parent's personalities cannot be reconciled, a split may oc-
cur in the child's personality as he attempts to relate to both
parents but finds that efforts to satisfy one may elicit rebuff
and rejection from the other. 9
Another kind of conflict that impairs socialization in the fam-
ily is that which arises from an external source and which
injures the prestige of the norm-sender. Families in communi-
ties that undergo rapid or sudden social change, especially
immigrant families whose cultural tradition in their countries
of origin is markedly divergent from the culture of the ab-
sorbing community, may suffer socio-economic injuries which
harm or even shatter the status of the head of the family.
These types of conflict stem basically from "external" sources
such as industrialization, urbanization, mass immigration, and
social change, and they create conflict situations within the
family between parents and the offspring, with a high prob-
ability of injuring the prestige of the norm-source and thus
hampering and injuring the norm-sending process. In Israel, for
instance, this type of conflict has been proved a factor in weak-
ening the cohesion of the family unit and thus shattering
family control over the young.
In the United States, the impact of slavery and segregation
on the Negro family has often had a similarly debilitating effect
on its ability to socialize its children. The shattering of family
control typically results in the "street-culture" replacing the
family as the primary norm-sender. The Kerner Commission Re-
port has described the process well :
The high rates of unemployment and underemployment
in racial ghettos are evidence, in part, that many men living
in these areas are seeking, but cannot obtain, jobs which will
support a family. Perhaps equally important, most jobs they
can get are at the low end of the occupational scale, and
often lack the necessary status to sustain a worker's self-
respect, or the respect of his family and friends.
Wives of these men are forced to work and usually pro-
duce more money. If the men stay at home without working,
their inadequacies constantly confront them and tensions
arise between them and their wives and children. Under
these pressures, it is not surprising that many of these men
flee their responsibilities as husbands and fathers, leaving
home, and drifting from city to city, or adopting the style of
'street corner men.'
The Family and Violence 185
With the father absent and the mother working, many
ghetto children spend the bulk of their time on the streets
the streets of a crime-ridden, violence-prone, and poverty-
stricken world. The image of success in this world is not
that of the 'solid citizen,' the responsible husband and father,
but rather that of the 'hustler' who promotes his own inter-
ests by exploiting others. The dope sellers and the numbers
runners are the 'successful' men because their earnings far
outstrip those men who try to climb the economic ladder in
honest ways.
. . . Under these circumstances,. many adopt exploitation
and the 'hustle' as a way of life, disclaiming both work and
marriage in favor of casual and temporary liaisons. This
pattern reinforces itself from one generation to the next,
creating a 'culture of poverty' and an ingrained cynicism
about society and its institutions.
A third kind of conflict situation is conflict between verbally
transmitted rules and the actual behavior of parents. When par-
ents pay lip-service to legitimate behavior but act contrary to
these same norms, conflict situations are created. This phenome-
non may help to explain some middle- and upper-class juvenile
delinquency the so-called "good home delinquents." On deeper
analysis these homes may not be all that good, for conflict of this
kind may have entirely destroyed the legitimate norm-sending
capacity of the family.
Thus the parents may preach idealistic achievement, Christian
love and spiritual values, but their actual behavior may be di-
rected solely toward material achievement. Parents may preach
law observance, but children may see their parents push their
way up in the "rat race" or in the cutthroat competition for up-
ward social mobility without being particularly scrupulous about
the means used to achieve their coveted goals. The verbal rule
may state that one's interests should be sacrificed to help others,
but the way the parents behave reveals that their actual belief
is "everyone for himself." Even if the children do not identify
themselves with their parents' acts instead of with their verbally
phrased norms, the norm-sending process is still hampered by
the conflict situations created by the parents' preaching and
teaching one set of norms and behaving according to another.
Another and deeper kind of conflict between verbally trans-
mitted rules and actual behavior of parents stems from the fact
that adults, as grown children, still have within them some of the
unresolved struggle of growing up which gets played up in rela-
tionships to others in ways of which they may be unaware. Thus
186 Report of the Task Force on Law and Law Enforcement
there can be unconscious communications by adults which are
perhaps in absolute contrast to their conscious intent. Some dra-
matic work by investigators Johnson and Szurek demonstrated
the degree to which children can present problems in behavior
and be extremely difficult to manage due to a vicarious psycho-
logical participation on the part of the parent who consciously
decries the behavior of the child. It is this kind of conflict be-
tween the consciously stated standards of the parents and their
unresolved, underlying feelings about behavior such as violence
and aggression that may prompt the youngster to act out the
behavior as part of his relationship to the parent.
A fourth kind of conflict which impairs socialization is incon-
sistent or crudely punitive disciplining of children. Where sanc-
tions are sporadic, erratic, and inconsistent, social conditioning
does not take place and consequently the normative barrier
against violent behavior is not formed. Too severe punitive sanc-
tions are also detrimental to norm internalization. Some findings
have indicated that unusually severe or harsh child-rearing
practices are linked with poor and fragmentary norm internali-
zation. 10 In like manner, too intense punishment is ineffective in
suppressing undesired behavior. 11 A research finding which is di-
rectly related to violence indicates that children who have expe-
rienced rejection or extreme punitiveness from their parents are
likely to show weak internalization of a sense of duty and re-
sponsibility and have bad control over their tendencies for ag-
gressive behavior. 12
A survey of delinquent group members revealed consistently
that their parents were usually punitive and rejecting. 13 Pro-
fessor Kohlberg also finds that parents of delinquents tend to be
more punitive than parents of nondelinquents, although they do
not differ in extent of "firmness" of socialization and home de-
mands. They are less warm and affectionate and more incon-
sistent and neglectful than parents of nondelinquents. 14 Con-
versely, the parents', and especially the mothers', warm and
affectionate treatment of the infant enhance greatly the efficacy
of socialization. Consequently, withdrawal of affection or the
threat of it is the most durable and effective sanction. 15 Delay of
reward is also found to be effective in suppressing undesirable
behavior. 16
Middle class families resort more to withdrawal of affection as
sanctions in socializing their children, whereas the lower classes
inflict more repressive punishment. 17 This difference may help
explain the lower incidence of violence among middle-class youth
whose socialization is presumably more effective. As a rule-of-
thumb conclusion, then, aggressive parents breed aggressive
children, whereas the subtle manipulation of rewards may help
create an effective barrier against violence.
The Family and Violence 187
WHAT CAN BE DONE?
In theory, we have many methods to prevent or to correct the
effects of faulty, conflict-ridden socialization on delinquent and
violent children. In practice, the effectiveness of most of these
methods is limited by a number of factors.
Child-guidance clinics and family counseling bureaus may ad-
vise parents on desirable methods of child rearing and socializa-
tion, but those who most need help are not the ones who seek out
such services even where they are available and of high quality.
Sometimes an influential aunt or grandmother, or even a teacher
or priest, may succeed in socializing children with whom parents
have failed. But the "extended family," with a large network
of relatives surrounding the nuclear family and participating
in the raising of its children, is increasingly disrupted by social
and geographic mobility, and teachers and clergymen have less
and less personal contact with families in today's society.
It is a sad fact, but a fact nonetheless, that today for the most
part we are taught how to be parents by our first-born children
(and by occasional desperate forays into Dr. Spock). We go
through a process of trial and error, and we don't really have
much in the way of social institutions that help parents effec-
tively learn how to be parents. This vital skill is not generally
taught in the course of formal schooling, and this is one area
where there could be a major step by building some effective
training for parents into the formal educational process.
Many institutions report some success in efforts to correct the
faulty socialization of delinquents and criminals. The Highfield
Institution for Delinquents and the Boys Industrial School of
Kansas, which has an association with the Menninger Clinic in
Topeka, Kans., exemplify such intensive treatment programs.
Professor Ernst Popanek, who directed the Wiltwyck School in
New York, tried to counter aggression by friendship, permis-
siveness, and understanding which permeated the violence-prone
boys' "total environment." Similar attempts have been carried
out by Prof. Fritz Redl to ease the aggressivity of "children who
hate" 18 at Pioneer House in Detroit, and by Professor Bruno
Bettleheim at the Orthogenic School of the University of Chi-
cago. In all these cases, aggressive and guiltless psychopathic
children gained a fair measure of internalized guilt and their
aggressivity declined.
The crucial question, however, is whether society is prepared
to foot the immense bill for this kind of psychiatric treatment of
every violent child. Intensive psychotherapy is expensive and,
when successful, may take years to achieve positive results. How
many children may be accepted in the select and experimental
institutions which offer this complex, elaborate, and costly
188 Report of the Task Force on Law and Law Enforcement
"milieu therapy"? Shouldn't the focus be on preventive strate-
gies aimed at problem groups, rather than on corrective pro-
grams of this type ?
A bewildering multiplicity of factors are involved in any pre-
ventive strategies, however. The ghetto Negro family, for in-
stance, has tended to become matriarchal because of social in-
fluences that can be traced all the way back to the practice of
slave owners to break up families by selling their individual
members. 19 Prevention of the deleterious effects that this family
structure has on socialization entails nothing less than a virtual
revolution in American attitudes, mores, and race relations. This
revolution is probably taking place right now, but before it is
carried through many more cohorts of violence-prone Negro chil-
dren will be born into the slums of our cities.
At the level of preventive individual treatment, the most severe
difficulties are encountered. How can outside agencies detect
violence-breeding socialization processes? Conflict-ridden sociali-
zation leaves its scars on the personality of the child at a very
early age, and it often manifests itself only in quite subtle modes
of familial interaction. The aggressivity or violence may not
erupt until years later. Moreover, assuming detection were pos-
sible, how would we intervene? In America, even the rudest home
is a castle, and even the most miserable family is a shrine. What
agency would we dare let to trespass into this sanctuary when
no law has been broken?
Neither government nor any other institution of society can
make a husband and wife create a relationship of love among
themselves and their children ; they must do that on their own,
as individuals. But government can at least try to create the
conditions under which stable families can thrive. 20 It can make
it possible for fathers to have jobs, and hence to have the self-
respect that comes from being able to support a family. Govern-
ment can act against hunger, disease, poor housing, and urban
decay, thereby creating a humane environment in which humane
personal relationships can develop. Schools can give hope to
the young, and to the parents whose hope is in their children.
Churches can awaken men and women to the moral and spiritual
dimensions of family life.
Given the velocity of change in our society, it is inevitable that
family structures will come under increasing pressures. These
pressures are likely to underscore the family's importance even
more than at present; for the stability of man, and his ability to
respond nonviolently to his life experiences, depend on the sta-
bility of the family in which he is raised. The family, the central
institution of human society, whose failure undermines all, can
and must be strengthened by the operations of the other institu-
tions of society.
The Family and Violence 189
REFERENCES
1. Lyman C. Wynne, Irving M. Ryckoff, Juliana Day and Stanley I. Hirsch,
"Pseudo-Mutuality in the Family Relations of Schizophrenics," in
The Family, ed. bv Norman W. Bell and Ezra F. Vogel (Glencoe, 111.:
The Free Press, 1960), at 573.
2. Lawrence Kohlberg, Stac/e and Sequence: The Developmental Approach
to Moralization (New York: Holt, Rinehart & Winston, 1969).
3. Sophia M. Robison, Juvenile Delinquency (New York: Holt, Rinehart
& Winston, 1960), at 81.
4. John W. Thibaut and Harold M. Kelley, The Social Psychology of
Groups (New York: John Wiley & Sons, Inc., 1959).
5. Edwin H. Sutherland and Donald R. Cressey, Principles of Crimin-
ology, 6th ed. (Philadelphia: Lippincott, 1960), at 195.
6. Francis I. Nve, Family Relationships and Delinquent Behavior (New
York: John Wiley & Sons, Inc., 1958). at 47.
7. C. R. Shaw and H. D. McKay, "Social Factors of Juvenile Delinquency,"
National Commission on Law Observance and Enforcement, Report on
the Causes of Crime, II (Washington, D.C.: Government Printing
Office, 1931), at 276 et seq.
8. L. D. Jaffe, "Delinquency Proneness and Family Anomie," Megamot,
March 1962.
9. Theodore Lidz, The Person: H^'s Development Throughout the Life
Cycle (New York: Basic Books, 1968).
10. Justin Aronfreed, Conduct and Conscience; the Socialization of Inter-
nalized Control over Behavior (New York: Academic Press, 1968), at
305.
11. Id., at 203.
12. W. McCord et al., "Familial Correlates of Aggression in Nondelinquent
Male Children," 62 Journal of Abnormal and Social Psychology 79-83
(1961).
13. Albert Bandura and Richard Walters, Adolescent Aggression New York :
Ronald Press, Co., 1959).
14. Lawrence Kohlberg, "Development of Moral Character and Moral
Ideology," in Review of Child Development Research, Vol. 1, ed. by Lois
W. Hoffman and Martin L. Hoffman (New York: Russell Sage Founda-
tion, 1964), at 383-433.
15. Aronfreed, supra note 10, at 316.
16. C. B. Ferster and J. B. Appel, "Punishment of S Responding in Match-
ing-to-Sample by Time-Out from Positive Reinforcement," 4 Journal
of the Experimental Analysis of Behavior 45-56 (1961).
17. Aronfreed, supra note 10, at 318.
18. Fritz Fedl and David Wineman, Controls from Within: Techniques for
the Treatment of the Aggressive Child (New York: The Free Press,
1954.
19. Report of the National Advisory Commission on Civil Disorders (Wash-
ington, D.C.: Government Printing Office, 1968), at 144-45.
20. See discussion and recommendations concerning the family in The
Challenge of Crime In a Free Society, at 63-66 (Washington, D.C. : Gov-
ernment Printing Office, 1967) ; see generally the comprehensive review
and bibliography in Rodman & Grams, "Juvenile Delinquency and the
Family: A Review and Discussion", Appendix L of th^ Task Force
Report on Juvenile Delinquency (President's Commission on Law En-
forcement and Administration of Justice) (Washington, D.C. : Govern-
ment Printing Office, 1967).
CHAPTER 10
THE PUBLIC SCHOOL AND THE
CHILDREN OF POVERTY*
Most children grow up to become constructive members of
society, respecting law and settling their difficulties in peaceful
and commonly accepted ways. Since violence and disrespect for
law are evidently increasing, however, more and more attention
is being given to the process by which children develop into
responsible adults. Intensified efforts are being made to identify
the experiences of children that assist, and those that hinder,
their development as law-abiding citizens. Clearly, one of the
most important institutions in this process is the school.
The school furnishes children with a major introduction
to the larger society beyond the immediate family, and it bears
the responsibility for equipping children with the skills neces-
sary to the achievement of a satisfying role in that society.
Often it is, as the President's Commission on Law Enforcement
and Administration of Justice observed, "one of the last social
institutions with an opportunity to rescue the child from other
forces, in himself and in his environment, which are pushing him
toward delinquency." 1
When the school is a place where children find that they can
be successful and can experience just treatment, they develop
respect for law and for habits in harmony with the regulations
of their society. But when the school is a place where children
fail or where they experience unjust treatment, they become
frustrated, they reject society's values, and they are more likely
to resort to violence in an effort to solve their problems. In
America we have both kinds of schools, and the children of
poverty are to be found primarily in the second kind.
* This chapter is based primarily on materials submitted by Ralph W.
Tyler, Director Emeritus, Center for Advanced Study in the Behavioral
Sciences, Stanford University, and in part on research contributions sub-
mitted by Jean D. Grambs, Professor of Education, University of Maryland,
and George Jones, Director, Task Force on Urban Education, National
Educational Foundation.
191
192 Report of the Task Force on Law and Law Enforcement
PUBLIC EDUCATION TODAY
Public education in the United States today enrolls more
students, employs more teachers, and receives more financial
support than ever before. 2 In 1966-67, American elementary
schools enrolled 36 million children and employed more than 1
million teachers; our high schools enrolled 13 million youth and
employed over 850,000 teachers; and expenditures for that
school year were $31.9 billion. These figures indicate genuine
national accomplishment.
The average American has spent much more time in school
than his parents did: now 75% of our teenagers finish high
school about the same proportion that finished eighth grade
in 1929. In 1870 one-fifth of the white population and four-fifths
of the Negro population were illiterate. Now only 2.4 percent
are illiterate mostly older people and Negroes, Mexican- Ameri-
cans, Puerto Ricans, or Cubans concentrated mainly in the
South and in large cities. The gap in median years of schooling
between whites and Negroes has fallen from 3.4 years for those
born in 1901 or before to one-half year for those born between
1942 and 1946, and it appears to be narrowing still further.
The resources used to educate each pupil have also been in-
creasing. In 1956 there were 27 pupils per teacher, now there
are 24. Now 93% of our teachers have college degrees, com-
pared to 78% in 1956. Expenditures per pupil in elementary and
secondary public schools increased from $2.25 to $3.43 per day
(in constant dollars) between 1954 and 1964. Comparative
test results support the tentative judgment that this increased
investment is paying off: American children in the sixties
seem to be learning more than their older brothers and sisters
learned in the fifties.
Despite the clear accomplishments of our national educa-
tional effort, however, two groups in our society continue to
suffer acutely from poor quality in education: the children of
the inner city and the children of rural America.
Approximately one-fifth of the children in the United States
do not attain the level of literacy required for available employ-
ment. These educationally deprived children are heavily con-
centrated among the urban and rural poor. In urban and rural
slum areas, for example, 40 to 60% of the children in the sixth
grade perform at the second grade level or below on achievement
tests. A majority of the young men failing the Armed Forces
Qualification Test, white and black alike, are brought up in
poverty and half come from families with five or more children.
Those young people from poor families who nonetheless do
score well on achievement tests are much less likely to enter
college than those who come from a higher socioeconomic level.
The Public School and the Children of Poverty 193
Only one-third of our more talented high school graduates (in
the upper 60% in academic aptitude) will go on to college if
their parents are in the bottom socioeconomic quarter of society.
By contrast, 85% of the more talented children of parents in
the top socioeconomic quartile will go on to college after gradu-
ating from high school. 3
Rural adults and youth are the product of an educational
system that has historically shortchanged rural people. 4 While
rural youth may be getting a better education today than their
parents got, their level of educational achievement is still lower
than for urban youth. In 1960 the average schooling for the
urban population over 25 was 11.1 years, compared with 9.5
years for rural nonfarm and 8.8 years for rural farm people.
Rural students drop out of school sooner, and the percentage of
those who go on to college after completing high school is much
lower than for urban youth.
Because of low teacher salaries, rural schools are not able to
attract and hold the better teachers. Small communities have
fewer high school teachers with five or more years of college and
more elementary teachers without a college diploma. The per-
centage or rural teachers not properly certified is about twice as
high as for urban teachers.
The facilities in many rural schools are equally depressing.
In spite of considerable consolidation of school units, rural
schools in general are smaller and less well equipped than urban
schools. There are still about 10,000 one-room schools in this
country mostly in rural America. Vast improvements have
been made, but some of these small schools still have outdoor
privies and are without running water. It is the products of
these inadequate rural schools who inevitably migrate to the
cities, propelled by economic necessity. They then become a
potent force for disaffection and irrational violence.
Inner-city schools are over-crowded, poorly equipped, under-
staffed, and underfinanced. 5 Between 1951 and 1963 Chicago
built 266 new schools or additions mainly in all-Negro areas.
Yet in 1964 5 of the 8 all-Negro high schools and 4 of the 10
integrated high schools had enrollments over 50 % above de-
signed capacity compared with similar overcrowding in only
4 of the 26 predominantly white high schools. In Detroit, 30
of the school buildings still in use in inner-city areas were
dedicated during the administration of President Grant. Negro
pupils have less access to physics, chemistry, and language
laboratories, and fewer books per pupil in their libraries.
The schools attended by inner-city children are commonly
staffed by teachers with less experience and lower qualifications
than those attended by middle-class pupils. A 1963 study rank-
ing Chicago's public high schools by the socioeconomic status
194 Report of the Task Force on Law and Law Enforcement
of the surrounding neighborhood found that in the 10 lowest-
ranking schools only 63% of all teachers were fully certified
and the median level of teaching experience was slightly under
4 years. By contrast, in the 10 highest ranking schools, 90%
of the teachers were fully certified and the median level of
teaching experience was over 12 years.
Despite the special problems presented by children entering
the school system from disadvantaged backgrounds, our society
spends less money educating ghetto children than children of
suburban families. Twenty-five school boards in communities
surrounding Detroit spent up to $500 more per pupil per year
to educate their children that the city spent. Merely to bring
the teacher/pupil ratio in the city in line with the state average
would require an additional 16,650 teachers. In a study of 12
metropolitan areas, the Civil Rights Commission found that in
1950, in 10 areas the central cities spent more per pupil than
the surrounding suburbs; by 1964, however, in only five areas
did the central city spend more per pupil than the average
suburb. The major reasons for this reversal are the declining
tax base in the cities, and the increasing competition from non-
school needs for a share of the municipal tax dollar. 6
In addition to these inequalities, the schools to which well-
to-do parents send their children, and the schools which are
attended by the children of the poor in the inner city or in rural
America are unequal for the apparently paradoxical reason
that they offer essentially similar educational programs. The
curriculum for the fearful, malnourished, linguistically different
child is little different from that provided for the well-adjusted
middle-class child from a supportive home environment. The
result is effective educational inequality.
Most middle-class students are supported by parents who
reinforce the rules, methods, and goals of the schools. These
parents provide quiet rooms for study, encyclopedias, expensive
equipment for science fair projects, instruments for music,
trips to libraries, and the like. Their youngsters are strongly
encouraged to do well. If kindergartens are not provided by the
school system as they generally are not in the South, for
example, where low income rural families are concentrated
conscientious middle-class parents pay for such preschool edu-
cation. The parents themselves are a hidden subsidy of the
whole process of education worth many thousands of dollars
per student.
The situation of children in the inner-city school or the schools
in rural poverty is different. They have not had parents read
to them, nor have they seen family or friends devote much time
to reading. What they read in school is foreign to their home
experience and their parents can take little interest in it.
The Public School and the Children of Poverty 195
Thus, where the middle-class mother will ask her child what
he learned in school that day and encourage him to learn more,
the ghetto mother may express more concern over his becoming
a "troublemaker" in the eyes of his teacher. She chides her
child: "Don't get into trouble! Don't do anything to make the
teacher mad!" By taking this "antidelinquency" approach, she
encourages her child to avoid active involvement in learning
and simply to become passive. Similarly, the poor rural parent
may want his child to get a good education so that he can get a
good job but the parent often places little value on the sub-
stantive content of the learning as such.
THE CHALLENGE TO AMERICAN EDUCATION
Children from homes of poverty belie our boast that we have
universal education and equal opportunity for all. The greatest
challenge to American education today is to find effective ways
of helping the children of poverty learn the basic intellectual
skills so that they can be more successful in school and compete
more successfully for jobs and rewarding positions in the com-
munity when they become adults. 7 More than ever before,
citizenship in our society requires education for adequate under-
standing of government and public problems, and for construc-
tive family life and individual development.
The uneducated child and the poorly educated youth are not
promising assets in a modern technological society. At the
turn of the century farm labor constituted 38% of the labor
force; now it is less than 7 percent. Unskilled labor represents
less than 6 percent of the labor force and, as with farm labor,
the proportion continues to decrease. Meanwhile, the demand
for educated people in the professions, the service occupations,
management, engineering, and science exceeds the supply.
How can we meet the educational challenge which the children
of poverty represent? 8
Congress has recognized the imperative need for educating
disadvantaged children by boldly and responsibly offering cate-
gorical aid to schools having a concentration of children from
homes of poverty. Title I of the Elementary and Secondary
Education Act of 1965 authorizes approximately $1 billion of
federal funds for this purpose. Unfortunately, however, the
majority of the efforts by schools receiving these funds have so
far not been effective. Several reasons can be given for these
failures.
In the first place, the added resources are wholly inadequate.
For the child of poverty to overcome the disadvantages of his
home and acquire the language habits needed to cope with a
sophisticated, urban environment and a positive attitude toward
196 Report of the Task Force on Law and Law Enforcement
his own potential as a learner requires major changes in school
programs and practices that cannot be effected by expenditures
of only 10 or 15 percent more than the ordinary school
expenditures.
The inadequacy of federal financial support is critical. The
local school or even the state cannot effectively secure the neces-
sary financial resources. The property tax, which has been the
traditional source of local support for education, can no longer
be increased in most localities. Furthermore, when it is used
as a local revenue base for supporting education, it guarantees
inequality in educational opportunity, since the poor are most
likely to be found in districts where the assessed valuation of
property is the lowest. The current efforts to increase the pro-
portion of school funds provided from state revenues have
helped improve the financial situation in some states, but there
are also great inequalities among the states in the available
revenue-resources per pupil. For example, in 1967-68 the state
and school districts of Mississippi levied a greater proportion
of the total state income to raise the $413 per child spent on
education than did New York State to obtain the $1,125 which
was its average cost per child. Any large-scale reduction of
inequalities throughout the nation can be achieved only through
greatly increased federal contributions to the financial support
of education within the states.
A second reason why federally-supported efforts have largely
failed to improve the education of the poor is that most of these
efforts have focused on children from 6 to 17 years of age
yet the children who are disadvantaged in the first 3 or 4 years
of life fall farther and farther behind as they go through school.
In the metropolitan Northeast, for example, Negro students on
the average begin the first grade with somewhat lower scores
than whites on standard achievement tests, are 1.6 grades behind
by the sixth grade and have fallen 3.3 grades behind white
students by the 12th grade. As we have noted, the influence
of the home, especially in the first years of life, can be decisive
for the child's success or failure in school.
What is required is the early provision of a supplementary,
educationally supportive environment for the children of poverty
people to read to them, converse with them, stimulate their
curiosity, assist with their health and nutrition needs : in short,
preschool programs like Head Start, only on a much expanded
scale and better integrated into the total school system. Last
year only about 220,000 children were enrolled in the full-year
Head State program; yet there are about 2*4 million children in
the 3 to 5 age group from homes with extremely low incomes.
Moreover, when the children leave the progressive learning
environment of programs like Head Start, they often go into
The Public School and the Children of Poverty 197
a traditional, restricted elementary school system that does not
provide for continued development.
A third reason why we are not succeeding in our modestly
larger efforts to educate the children of poverty is that we have
failed to arrange for the necessary major modifications of the
school setting, the school program, and the kinds of personnel
employed. Our traditional pattern of education is simply not
effective with disadvantaged children and youth for whom the
school bears essentially the entire educational responsibility.
Yet most of our programs and projects have made only minor
modifications in the traditional pattern.
At the high school level, for example, adolescents from affluent
homes as well as poor ones too often perceive little or no con-
nection between the educational content of the school and their
own concerns. Because they do not see the relevance of the
high school to their present and future lives, they often ignore
the learning tasks assigned. They turn their attention to other
things such as athletics, social activities, artificial stimulants,
or they may become quiescent, enduring the school routine until
they can drop out. This problem has been recognized by many
secondary schools over the years, but the steps taken have not
been adequate to solve it.
In an effort to provide a meaningful and relevant program
for the student, some schools have broadened the offerings of
the curriculum, but within the same framework, so that the
new courses were also outside the real concerns of the student.
The history of Africa can be as lifeless as the history of Colonial
America if both are seen as little more than a series of remote
events to memorize. Other efforts to attack the problem have
often been based on the assumption that the root of the difficulty
was in the boy or girl, not in the school and its program. Hence,
the focus has been on such strategies as counseling, without
making any basic shift in school attitudes and practices.
What is required is basically the development of a close and
active relationship, not simply a formal one, between the school
and the responsible adult community, so that the student will
be confronted by questions and problems outside the school that
can be attacked only by what he learns in school. The school
must be brought out of isolation. The emphasis must be upon
learning what is relevant to the student's life, not upon grades,
credits, and other artificial symbols. We must make a major
effort to furnish high school students with significant adult
activities job programs, community service corps experience,
work in health centers, apprentice experience in research and
development, and in staff studies conducted by public agencies.
We must redesign the high school to open it to the community
and to utilize many different kinds of persons in education.
198 Report of the Task Force on Law and Law Enforcement
The school will need to serve a wider range of ages and allow
students to vary the amount of time devoted to studies. In
this new interaction of school and community, "learning on
the job" will not substitute for learning in school; rather, the
job will present the youth with the challenges which he must
meet by learning in school.
The kind of education described here has been shown to arouse
greater interest and effort in many students than classroom
study alone, to increase student understanding of the subjects
studied, and to develop maturity of responsibility and judgment.
Community service corps experience such as that developed by
the Friends Service Committee has been found to arouse in many
students greater motivation to learn and to develop social skills,
social responsibility, and maturity of judgment. Communities
have constructed the Neighborhood Youth Corps program to
serve a similar purpose with young people from backgrounds of
poverty and limited opportunity. The involvement of a broad
range of people in the educational activities of youth has proved
helpful, as has the provision of a variety of patterns to include,
in addition to full-time enrollment, part-time school attendance
while holding full-time or part-time jobs, and enrollment in
high school, full time or part time, after a period of work,
military service, or other activity. This varied pattern or ex-
perience and competence can be utilized constructively in an
institution open to the community, whereas it is likely to be a
handicap to a school operating in isolation, with study confined
to textbooks and related materials.
An educational strategy of this kind obviously requires more
than money though it will require that in greater amounts
than our society has heretofore provided. New institutional
arrangements and new personnel will be needed : job coor-
dinators, a community service corps, new means of certifying
educational achievement. Changes will have to be made in child
labor laws and in practices of employers and labor organiza-
tions. Teachers will have to be recruited differently, trained
differently, and utilized differently. New curricula will be
needed, with new instructional materials. Governors and legis-
latures will have to be furnished with more adequate staff to
help them carry out their educational policy-making responsi-
bilities. None of these manifold requirements will be easily met.
In sum, the educational problems of disadvantaged students
and increasingly of advantaged students as well cannot be
solved successfully merely by doing more of what has been done
in the past or simply by concentrating greater effort on the
same activities. New approaches must be found.
The Public School and the Children of Poverty 199
CONCLUSION
The failures of the children of poverty in our schools are not
inevitable. Schools serving poor families can contribute to the
development of adults who respect law and find a constructive
role in society.
Today the schools of the inner city and of rural America
are not accomplishing this task and in the ghetto, rates of
violent crime are 10 to 20 times what they are in the suburbs,
while poor rural areas, especially in the South, are the locus
classics of the "forgotten man" with his often violent hostility
toward Negroes and his alienation from government.
Our nation stands, as it were, in the schoolhouse door:
either we will stay where we are, preventing the children of
poverty from entering into the educational process, or we will
go forward, taking these children inside new and better schools
to true educational opportunity.
REFERENCES
1. The Challenge of Crime In a Free Society (Washington, D.C.: Govern-
ment Printing Office, 1967), at 69. See generally id. at 69-74 and Ap-
pendices M and N of the Crime Commission's Task Force on Juvenile
Delinquency (Washington, B.C.: Government Printing Office, 1967).
2. Toward a Social Report (Washington, B.C.: Bepartment of Health,
Education, and Welfare, 1969), at 65-72.
3. Id., Table 3, at 21.
4. Report of the President's National Advisory Commission on Rural
Poverty (Washington, B.C.: Government Printing Office, 1967), at 41
et seq.
6. Id. at 435.
7. Toward a Social Report, supra note 2, at 70.
8. Tyler, "Investing in Better Schools," Agenda For the Nation, Washing-
ton, B.C., Brookings Institution, 1968.
CHAPTER 11
THE CHURCH AND THE URBAN CRISIS*
The relation of the Church (or Churches) to violence is no
less complex than the relation of organized society in general
to the problem of violence. A common impression holds that
the Church, standing for what is good and holy, must be op-
posed to violence and must uphold public order, and this view
leads in turn to the judgment that the contemporary increase
of violence indicates a failure of religion, a failure of the
Churches. Consequently, it is argued, if the Churches could be
made more "relevant" to contemporary life, order would be
increased and violence diminished.
These common-sense impressions oversimplify the issues of
order and violence and run the risk of obscuring the function
of religion and the Churches. As Samuel Klausner has pointed
out in great detail in a paper submitted to the Commission's
Task Force on Individual Acts of Violence, religion often pro-
vokes and supports violent behavior. It is often disruptive;
prophets are generally disturbing people.
Furthermore, as Klausner has vividly described, religion
can become associated with the interests of a dominant group
in society and be used to reinforce these interests to the detri-
ment of the poor, the underprivileged, or the oppressed. Marx
could marshal considerable historical evidence to support his
charge that religion is the opiate of the people. By contrast,
religion can also be the rugged basis for survival against op-
pression, as in the case of Irish resistance to England. Any dis-
cussion of the relationship of religion or the Churches to the
maintenance of order or the curtailment of violence must be
thus kept carefully within the perspective of the total function
of religion in society.
The problem which the Church faces is not whether it will
*This chapter was prepared by Joseph P. Fitzpatrick, S.J., Professor
of Sociology, Fordham University, based in part on research contributions
by the Rev. Donald W. Seaton, Jr., Director, Center City Hospitality
House, San Francisco, and Prof. J. Archie Hargraves of the Chicago Theo-
logical Seminary.
201
202 Report of the Task Force on Law and Law Enforcement
induce or maintain order, but rather what order will it main-
tain and to whose advantage? In relation to the urban crisis
specifically, it is clear that the Church has supported a public
order which favors the affluent rather than the poor; in this
sense, it has appeared to be "not relevant" to the urban crisis.
On the other hand, the Churches are probably the only institu-
tions in American society which will be heard with some confi-
dence if they seek to clarify the common values which can
bind the people of the nation together and form the basis on
which a general harmony and order might be built.
The Churches in the past have been the institutions which
provided a sense of security and solidarity which contributed
to the adjustment of immigrant people to the United States.
Perhaps they can still fulfill this function and at the same time
help their people transcend ethnic isolation and develop a sense
of higher unity in the nation. Especially in recent years, the
Churches have developed the ability to achieve cooperation and
understanding on common values despite the particular values
on which they differ, and they may be able to project this skill
to the nation at large.
LACK OF "REVELANCE" TO WHOM?
In the 19th century, stable urban neighborhoods had formed
in American cities around churches, parishes and congregations.
The Church grew with immigrant people as a central focus of
their social life, a symbol of their identity, and the basis for
that ethnic solidarity which enabled the immigrants to move
with strength into the mainstream of American life. Indeed,
an imaginative historian could write the history of American
people by writing the history of their relationship to their
churches. The Church not only integrated the lives of its mem-
bers, it also served as an intermediary institution to link the
lives of the congregation to the larger institutions of the entire
society. Religious identity became an important factor in polit-
ical life: it identified the loyalty and reliability of candidates;
it was a sign of common interests; it suggested the support
of common values.
This position of the Churches was not always achieved or
maintained without conflict and violence. As the symbol of dif-
ferent and conflicting interests, religion often became the point
around which hostility crystallized and which justified the de-
fense of particular interests in the name of God. The violence
which the Catholics have suffered at the hands of Protestants
is a sad feature of American history. But there was also serious
conflict between German and Irish Catholics, between French
The Church and The Urban Crisis 203
Canadian and Irish in New England, as there is now between
older Catholic immigrant groups and Puerto Ricans in New York
or Mexicans in the Southwest. Tension and conflict between
Christian and Jew have likewise been a troublesome feature of
American urban life. The positive social function which religion
played as the basis for group identity and solidarity thus be-
came quite disfunctional as the basis for the defense of con-
flicting interests. Nevertheless, continuing efforts at peaceful
co-existence tended to reduce the hostility, and neighborhoods
continued in relative peace around the churches or parishes or
congregations which identified the ethnic groups of the nation.
But conflicts continued to occur when newcomers moved into
the areas of these parishes or congregations, threatening the
older residents' stability, social solidarity and the sense of man-
aging their own lives. This movement is never a simple "inva-
sion," but rather a complicated process of neighborhood change.
But it reaches a point when the older residents feel invaded
and either set up hostile resistance or flee from the area to the
suburbs. As part of this process, established churches or par-
ishes are pressed by financial needs and traditional loyalties
to seek to maintain contact with and relevance to the more
affluent people who have fled, rather than to turn imaginatively
to the service of the newcomers. As a consequence, they often
give the impression at a particular point in time of pursuing
their own vested interest in survival rather than becoming rele-
vant to the needs of the poor.
This displacing and replacing takes many different forms.
Most of the fashionable Protestant congregations in New York
City have a suburban membership. In some Italian Catholic par-
ishes, half the burials are of people who had left the area, but
who have kept their ties to it until their deaths. This phe-
nomenon can happen to Negro as well as white congregations.
The Capitol Hill residential area was long a squalid Negro
ghetto. Negroes who succeeded professionally or economically
left the area, but returned regularly to worship in the Church
in the neighborhood from which they themselves had moved.
Should violence occur in such areas as these, the Church will
be helpless to intervene, having no links with the new popula-
tion, or it may become itself the target of attack as an institu-
tion of a social group alien to the residents of the area. In
relation to situations of urban tension, conflict or violence,
therefore, there are two distinct populations to which the effort
of the Church must be directed: to the newcomers, and to the
older members of the congregation, both those who have moved
to the suburbs and those who have remained in the inner city.
How does the Church become "relevant" to both in such a way
204 Report of the Task Force on Law and Law Enforcement
that order with justice and dignity may be promoted, and vio-
lence contained ?
THE CHURCH AS BRIDGE-BUILDER
The Churches can become relevant to the new populations in
the inner city by doing for them what they did for the former
residents, by becoming the focus around which a sense of
identity and social solidarity can develop. Many of the black
Churches already fulfill this role; the white Churches, and
particularly many white priests or ministers, who have become
relevant to inner-city people and issues, have to some extent
achieved it also. Father Groppi in Milwaukee ; Father John Powis
in the Ocean Hill-Brownsville section of Brooklyn ; the work that
Father Harold Rahm started among the Mexicans at Our Lady's
Center in El Paso ; the East Harlem Protestant Parish ; the work
of Monsignor Robert Fox among the Puerto Ricans in New York
these are all examples of situations in which white clergy-
men have won the confidence of black, Mexican, or Puerto
Rican people, and have become the basis for a sense of com-
munity, of social solidarity, of personal worth.
In situations like these, however, when conflict arises, the
churches or the clergymen identify with the position of the
underprivileged and frequently find themselves in conflict with
older residents or parishioners. Thus Father John Powis became
a very controversial figure during the turmoil about the Ocean
Hill-Brownsville experimental school district, and Father Groppi
is a fighting word in middle class conversations. It is for-
gotten that in these conflicts men like Powis and Groppi are
simply doing what the Church regularly did in relation to its
immigrant parishioners when they were poor and underprivi-
leged. It became the basis for loyalty and solidarity, and pro-
vided deep religious motivation for a struggle which immi-
grants defined as a struggle to preserve their own values or
promote their legitimate interests.
Moreover, in fulfilling this function, the churches and the
clergymen are not simply centers of rebellion or protest. They
provide an extraordinary link between the struggling newcom-
ers and the larger society; they are an effective channel of
communication ; they are a source of confidence to the new-
comers as they approach the larger society, and to the larger
society as they seek to approach the newcomers. Troublesome
and turbulent as they may sometimes be, these active clergy
serve as bridge builders between the old and new.
If the Church really succeeds in becoming the basis for a
strong, stable, self-confident comunity, it is effectively pre-
The Church and The Urban Crisis 205
paring the way for a more orderly society. "One integrates
from a position of strength, not from a position of weakness"
is a well-established sociological principle. If the newcomers
succeed in creating strong communities, the process of integra-
tion should move forward much more strongly. This is a long-
range goal, and there are no simple, immediate evidences of
its achievement. But community building represents one of the
most important ways in which churches have been relevant in
the past, and are likely to be relevant at the present.
Of course, the achievement of a strong sense of community
in and around the Church creates problems for the Church's
relationship with former residents, or members of the congre-
gation. Part of the resistance of former established residents
to the newcomers is due precisely to the fact that a strong
sense of comunity solidarity and identity had been developed
among them. They do not wish to lose this; yet the approach
of newcomers is generally perceived as a threat to the sense
of identity which the older residents had always been taught
to consider a strong social value. For example, many Italians
in New York City who have forged a strong community around
their Church raise the question: "Why is it wrong for us to
seek to retain the community solidarity which the in-coming
blacks and Puerto Ricans are striving to achieve?" Will the
churches, by identifying themselves with the newcomers, inevi-
tably alienate all others ?
This question raises the challenge of a genuine pluralism,
in which the newcomers could have their own identity and
sense of community, but in such a way that it does not prevent
their achieving a unity and cooperation on a higher level with
other groups which also have a sense of identity and commu-
nity solidarity. Religious groups such as churches or parishes
are probably the only institutions by which culturally differ-
ent groups, or conflicting or alienated groups may be brought
to some sense of unity. Repeatedly in the past, the religious
group has been able to bridge the gap between different social
classes, different ethnic groups, different interest groups, by
forging a common bond around common religious beliefs and
practices. Thus, in the celebration of the liturgy, rich and poor,
educated and uneducated, the powerful and the underprivileged,
have frequently been able to celebrate the common beliefs in
which they were one, despite the many differences which di-
vided them. These different groups may have interpreted the
common beliefs in different ways, and perhaps found different
meanings in the celebration of the liturgy, but the deep and
convincing common bonds were there. All accepted the belief
that men are the children of God and this belief provided a
206 Report of the Task Force on Law and Law Enforcement
fulcrum toward unity which would have been much more diffi-
cult to achieve if no such common belief existed.
Furthermore, despite the alienation of former established
parishioners, the churches and parishes are more likely than
any other groups to enjoy the confidence of the former parish-
ioners. Traditionally, these parishioners depend on the churches
to defend the ultimate values of their lives. If their religious
teachers assure them that these new neighborhood or commu-
nity developments are not a destruction of their basic values,
their confidence in their religious leaders may bring them to
some understanding of the social changes they see around
them. The simple fact that the Church teaches this understand-
ing does not mean that members of parishes or congregations
will thereby accept it. They often resist strongly. But the
Church can lay claim to a confidence that probably no other
institution has.
For example, in the matter of black power, it is important
for members of religious groups to perceive the fundamental
religious inspiration beneath the black striving toward dignity
and justice. The alienation of the black people from white reli-
gious groups is part of the total black effort toward identity,
self-reliance, self-respect, and community strength. Unity of
black and white in its traditional form will not be possible on
a large scale in the near future. Whatever unity of black and
white does emerge, or whatever involvement there may be of
white churches or white religious ministers in black move-
ments, it will develop along terms which the black people will
set. It is important for the churches to interpret the religious
basis of much of the black power movement for their white
parishioners. The presence of so many black religious leaders
in the movements of the black people for justice cannot fail
to impress religiously minded people.
The presence of black religious leaders such as Martin Luther
King has been important in preventing or moderating violence.
The impressive and widespread non-violence of the black
Americans should be an inspiration for a similar non-violence
among white people in the presence of the struggle of black
people for justice. And the Churches and congregations are the
institutions best suited to emphasize this. The danger of vio-
lence in the white reaction to black non-violence is a constant
threat to peace. Violent reactions may be contained among
white Americans if the Churches will continually call attention
to the religious character of the black movement, and empha-
size that religious values which blacks and whites share to-
gether are the motivating force beneath much of what the
blacks are doing.
The Church and The Urban Crisis 207
Another example of the importance of common religious val-
ues and their role in building understanding and cooperation
can be seen in the widespread support of the strike and boy-
cott of the grape pickers in California. Cesar Chavez, the Mexi-
can-American who is organizing these Mexican farm workers,
has given a decidedly religious tone to his organizational efforts.
The workers and pickets march under the banner of Our Lady
of Guadelupe, and although Chavez has no hesitation about
being involved in conflict, he uses the great religious symbol
of the Mexican people to strengthen the solidarity of his own
men and to provide a motivation for nonviolence. Many of
the Churches and religious leaders around the nation have
called attention to these significant features of Chavez' cam-
paign with the result that it has enjoyed extraordinary sym-
pathy among large segments of the middle-class community
who sense a bond of unity in the religious values evident in
the struggle of the Mexican workers.
It is precisely this role as bridgebuilder, as intermediary
between the poor and the affluent, between white and black,
between the newcomers in inner city neighborhoods and the
older residents who have fled, that the churches are eminently
suited to fulfill. Unless the resolution of these urban conflicts
is going to be left to sheer pragmatic accommodation, it is essen-
tial that some common values be emphasized as the basis for
understanding and cooperation between the many levels of
people in American cities. And the Churches bear the greatest
responsibility for asserting and emphasizing these common
values.
NATIONAL CONSENSUS PLURALISM AND ECUMENISM
The assertion of common values between newcomers and older
parishioners is the local dimension of the much larger problem
of national values in relation to violence. Just as the churches
can play an important role in asserting the common values
which are the basis of understanding and cooperation in neigh-
borhood or city, so also can they play a significant role in
seeking to assert the basic values on which the unity and soli-
darity of the nation can be based. This latter role is obviously
much more complicated and difficult, but unless there is a sense
of common values among the citizens of the nation, and a con-
fidence that these values are secure, it is doubtful that violence
can be avoided. In essence, this is the problem of national con-
sensus, and national consensus feeds back into local consensus.
If there is a sense of confidence in the acceptance of common
national values, it will be easier for the churches to assert
208 Report of the Task Force on Law and Law Enforcement
these values among people in suburbs, cities, and neighbor-
hoods.
In the effort to promote the common acceptance of values
and goals, two significant features of the religious experience
of the United States support the hope of favorable activity by
religious groups in this role. In the first place, the experience
of religious pluralism in the Nation has developed a tradition
of understanding and accommodation among religious groups.
Differences have been serious, and hostility often present, but
there has also been a strong and growing tendency to examine
religious differences and differences of values with a high de-
gree of intelligent objectivity. Religous groups, probably more
than any others, have been schooled in the art of accommoda-
tion. They have learned to pursue their own particular values
in the presence of conflicting values. Through controversy and
conflict they have learned the skill of recognizing areas of
agreement and common values which would enable them to
live together despite the differences. This American religious
style has developed attitudes and skills which can flow over
into other areas of life and influence the development of a
similar style in the wide range of national events in which
the danger of conflict is present.
A second promising feature of religious experience is the
spirit of ecumenism which has developed remarkably in the
past few years. This spirit has emerged from a large number
of sources, but one especially significant souce has been the
recognition by all the churches that their common values are
far more important at this moment in history than their dif-
ferences. In other words, in the presence of a general challenge
to the fundamental beliefs of all religious groups, the impor-
tance of differences between the religious groups diminishes in
perspective. Religious groups which face a rapidly increasing
number of men who deny that God exists are not as likely to
pursue conflicts about differences in doctrines about sacraments
or sacrifice as they would if there were not such a large num-
ber of non-believers. This increasing effort of religious groups
to clarify and assert the fundamental religious beliefs around
which there is agreement, and to accommodate their differ-
ences in the context of agreement, has brought the religious
groups to a point where they can be a major influence for
unity in American life. This same spirit of dealing with differ-
ences of values and interests in a context of striving for agree-
ment is directly related to many of the value differences which
have troubled American life. Ecumenism is one significant sign
that we have reached a new level of maturity and mutual
respect in managing them.
The Church and The Urban Crisis 209
If the experience with pluralism and ecumenism can be prop-
erly exploited, it should enable the churches to convert a sense
of identity and solidarity into a strong basis for a generous
and open attitude toward others. Emphasis on common beliefs
and common rituals should lead to more vigorous efforts at
mutual respect and understanding.
Particularly important in this regard is the value of repent-
ance. Repentance is a fundamental religious value in all churches
and one which is frequently ritualized on particular days and
periods of penance. The need for penance for the long years of
injustice and discrimination against black Americans should
be strongly pressed but in such a way that it leads to a desire
for more extensive community of the faithful in justice and
love.
CONCLUSION
In summary, therefore :
(1) Religious groups should seek to become the focus of
identity and community solidarity for newcomers in a
neighborhood, as they so effectively have been for previous
immigrant and ethnic groups. In doing so, they must rec-
ognize the need to make common cause with the poor of
these communities in their struggle to participate as equals
in American society. This entails a greater reaching out
of the church toward the community.
(2) Religious groups should take advantage of the con-
fidence they frequently enjoy among poor and affluent alike,
and especially among ethnic and racial groups which have
a deep sense of unity around a common religious identity,
to build bridges of confidence and understanding between
hostile groups. Religious groups should particularly work
toward understanding and cooperation between formerly
established residents and newcomers in a neighborhood
by asserting the common values which should be the basis
for unity.
(3) In these efforts religious groups should always be
sensitive to the fact that the very sense of identity of
people around religious values can reinforce group isola-
tion, and leave religion in a situation where it is the basis
for division and hostility.
(4) Religious groups must also be sensitive to the wide-
spread alienation from national values and religious values
which is prevalent, and recognize that this alienation is
partially due to the identification of religion with inter-
ests which are no longer seen as deeply human or even
210 Report of the Task Force on Law and Law Enforcement
deeply religious. If a genuine religious spirit can be made
more evident in religious groups, in parishes and churches,
they may serve once again as the basis for a renewal and
a sense of identity around meaningful values and goals.
(5) The dramatic and public manifestations of non-
violence inspired by religious motivation evident in the
Black protest movement and among Mexican-Americans
and Puerto Ricans provide a suitable basis on which reli-
gious groups should mount a much stronger and deter-
mined effort to cultivate a spirit of nonviolence through-
out the entire American community.
(6) The increasingly cooperative and ecumenical efforts
of religious groups, churches, and parishes in this Nation
can be directed more vigorously toward: (a) identifying
more clearly the central values of the Nation; (6) clarify-
ing the manner in which these values should express them-
selves in social institutions and individual behavior; and
(c) working toward an increasing national consensus
around these values.
The effectiveness of religion as a peacemaker should not be
overemphasized, however. It is not like a machine which works
automatically, nor is it a blueprint for people to follow simply,
step by step.
Religion is a call to the spirit, often muffled by the din of
men's preoccupation with the world. Sometimes religion is most
effective when it appears to be most helpless. The cry of the
prophet is often a lonely one which may provoke violence
against the prophet himself. He may speak more eloquently
in death than he ever did during his life.
Nevertheless, the past gives promise that the Churches can be
a genuine force for the containment of violence and for order
with justice and dignity.
CHAPTER 12
THE REFORM OF THE UNIVERSITY*
Individuals may form communities, Benjamin Disraeli once
observed, but only institutions can make a nation.
The observation is particularly relevant to this nation in these
troubled times. Institutions are the inventions by which man has
collectively solved his problems and civilized his world. When
they become ineffective, a nation is in serious trouble.
The malaise which presently afflicts the United States results
in large measure from a kind of "institutional paralysis." Our
political, economic, religious, social, and educational institutions
are in disarray; they are not sufficiently responsive to the de-
mands of the present or the needs of the people ; they seem un-
willing or unable to reform. Americans, as a result, have begun to
lose faith in their institutions and in the social system which they
comprise.
This is somewhat unusual. We Americans have always been
supremely confident of our ability to solve problems, to accom-
plish any goal. Now we are no longer so sure.
The Republic is plagued with problems that defy solution. De-
spite great national wealth, millions of Americans are poor. In a
land dedicated to the idea of freedom and equality, many of our
fellow citizens still struggle for basic human rights. Our cities
are decaying and appear to be ungovernable. Our countryside is
blighted and reveals a callous disregard for natural beauty and
natural resources. Our air and water are polluted. A war in Asia
has sapped our strength and divided our people; violence and
mounting crime at home mock our laws and erode our unity.
Age-old conflicts flare with renewed intensity between order
and justice, between the individual and the state, between private
rights and public welfare, between the older and younger genera-
tions.
The context of modern life is change bewildering, buffeting,
incessant change. Problems multiply far faster than solutions.
Events transpire so swiftly and so inexorably that they seem to
* This chapter was prepared by Ronald A. Wolk, Vice President of
Brown University.
211
212 Report of the Task Force on Law and Law Enforcement
have a force and a direction unto themselves. Our institutions,
like sluggish ships, creak and strain in these winds of change.
And our people grow weary.
Sociologist Wilbert E. Moore has written :
Concerted action to meet crises, to extend power, or to
resist tyranny is very old in human history. Concerted action
to create crises, to institute change as a regular feature of
social life, is rather new. In most societies through most of
human history, the predominant effort has been directed
toward holding things steady or restoring a steady state if
it is disrupted by some natural or man-made crisis. The
phenomenal thing about modern industrial states, and others
attempting to follow the same path, is the great energy de-
voted to deliberate disruption of existing conditions and the
creation of new ones.
In the face of this situation, many Americans despair and feel
that they can do nothing to influence the decisions and develop-
ments that shape their lives. Others, perhaps equally desperate,
struggle to regain control of their destiny through a massive
restructuring of society's institutions.
It should not be surprising that the greatest effort to reform
society and its institutions is being made by the young. They are
by nature idealistic and impatient.
Nor should it be surprising that the greatest effort to reform is
being directed at or through our institutions of higher learning.
The campus is the subculture of the young. The university is their
institution as well as their doorway to and lever on the greater
society.
"It is in the universities that the soul of the people mirrors
itself," Lord Haldane said half a century ago. Our colleges and
universities in their present turmoil surely reflect to a significant
degree the malaise of the larger society just as they have in
other nations in other times. What happens on the campuses,
therefore, will be very important not only for higher education,
but for the nation.
CAMPUS UNREST AND ITS CAUSES
Americans have never been so aware of their colleges and uni-
versities as they are today. Since World War II, higher education
has made enormous progress and has accomplished marvelous
things. But turmoil and violence have greater news value than
teaching and research.
The first dramatic assault on a university came in 1964, at the
University of California, when Mario Savio, a student, did battle
with Clark Kerr, the president. The "revolution" which began
then continues today. Mr. Kerr eventually became the first cele-
The Reform of the University 213
brated victim of the new era of campus unrest. There is some
irony in that, for he so aptly described the hazards of the new
"multiversity" that he presided over. Describing the president as
"Mediator," and thus seriously underestimating his role Mr.
Kerr wrote in The Uses of the University:
. . . peace and progress are more frequently enemies than
friends ; and since, in the long run, progress is more impor-
tant than peace to a university, the effective mediator must,
at times, sacrifice peace to progress .... Power is not neces-
sary to the task of mediation, though there must be a con-
sciousness of power. The president must police its use by the
constituent groups, so that none will have too much or too
little or use it too unwisely. To make the multiversity work
really effectively, the moderates need to be in control of each
power center and there needs to be an attitude of tolerance
between and among power centers with few territorial ambi-
tions. When extremists get in control of the students, the
faculty, or the trustees with class war concepts, then the
"delicate balance of interests" become an actual war.
The idiom of war used by Mr. Kerr has become increasingly
more appropriate. After Berkeley, a number of campuses erupted
into turbulence of varying degrees. Students became more mili-
tant, and their tactics more disruptive. Recruiters for Dow
Chemical and the military services were first picketed, then ob-
structed, and finally driven from the campus. Protests outside of
buildings escalated to lockouts, then sit-ins, then seizures. Here
and there the turbulence became violent and the police were
called in. Then in the spring of 1968, fierce and bloody riots broke
out at Columbia University.
The riots at Columbia in 1968 made the Berkeley revolt of 1964
seem quite tame. Savio fired at the university and bagged a presi-
dent; Mark Rudd not only brought down the president, but
wounded the university as well. Since then, the pace has quick-
ened. San Francisco State College set a new pattern of disruption
and violence : the first prolonged student strike, bombings, sabo-
tage, and a campus kept open only by daily patrols of police.
Last spring, when it almost seemed that matters could hardly
become worse, Harvard University cool, sophisticated Harvard
which seemed always to do everything right became the scene
of a bloody "bust." Some 400 club-swinging policemen emptied
University Hall of several hundred student protesters in a matter
of minutes. It was quick, efficient, and very violent.
Almost before the television crews could find lodgings in Cam-
bridge, a group of black students at Cornell seized a building and
smuggled in arms and ammunition to defend themselves. The
photographs showing them leaving the building, rifles in hand,
214 Report of the Task Force on Law and Law Enforcement
and bandoliers across their chests, shocked a nation that by now
had thought itself unable to be shocked.
A CBS television report later indicated that a substantial
number of white students had armed themselves, thus prompting
blacks to do likewise.
The wake of this campus turbulence is littered with casualties :
Presidents by the dozens have quit or been fired; faculty have
resigned ; students have been expelled or have droppd out to make
a profession of protest. Alumni and donors, on whom institutions
depend for financial support, have reacted with anger. Legislators
at the state and federal level have introduced scores of bills to
curb the student demonstrations and punish the demonstrators.
Said one professor :
The problems are similar to a city struck by sudden and
protracted disaster: confusion, disorganization, self-interest
rampant, a general malaise in which the cardinal principle
of conduct is "every man for himself."
This account of campus unrest since 1964 is so brief and over-
simplified that it is at best impressionistic. That is what it is
meant to be. The purpose of this chapter is not to trace the
evolution of campus protest and violence, but rather to offer some
thoughts about the reasons for campus turmoil, various responses
to it, and some of the possible consequences it may have for
higher education as a whole.
First, however, some distinctions must be made regarding stu-
dents and the nature of much campus protest.
To speak of "the students" as though they are a monolithic
force rampaging on the Nation's campuses is, of course, inaccu-
rate and misleading. More than seven million young people are
enrolled in colleges and universities in the United States, and
they are as varied in their social and cultural backgrounds, their
attitudes, manners, and morals as the society at large. The great
majority of these students are not radical, or militant, or even
activist. Most of them, in fact, attend the 1,600-or-so institu-
tions of higher learning in the country which have not been dis-
rupted by mass protest or violence. They represent what has been
called "the silent majority," and like most students of previous
generations they are concerned with preparing for and ulti-
mately suceeding in a career. These students are not significantly
involved in politics whether on or off the campus, and their basic
values are not substantially changed by the college experience.
It is also misleading and inaccurate, however, to conclude from
this that the turbulence on the campuses is being caused by a tiny
minority of students and that order will be restored if this small,
willful group is dealt with firmly. Although a majority of Amer-
ica's students are not part of the protest that has wracked cam-
The Reform of the University 215
puses in recent years, a substantial minority is in general sym-
pathy with it. A recent survey by Daniel Yankelovich, Inc., a
major attitude-research firm, revealed that about 40 percent of
America's college students (about 2.5 million) differ significantly
from the majority. They tend to be somewhat disdainful of
career preparation and financial success after college; they are
likely to be majoring in the humanities and to be concerned with
intellectual matters and social problems; they are interested in
public issues and politics, and their attitudes are likely to be
dissident.
The Yankelovich survey showed, for example, that about two-
thirds of this "involved minority" think it appropriate to engage
in civil disobedience in support of a cause. Two-thirds approve
disruptive tactics in resistance to the draft. Fewer than half of
these students feel that it is worth going to war to protect our
national interest, or contain communism, or protect allies, or
maintain our position of power in the world. Only 20 percent feel
it is worth fighting to protect the nation's honor, and only 14
percent would fight to keep a commitment. Half of the "involved
minority" indicated that they have less faith in democratic pro-
cesses than their parents have, and about half feel that the
United States is a sick society.
Attitudes are one thing, however, and action is another. Al-
though the "involved minority" may hold dissident views and
generally sympathize with much of the campus protest, most of
them have not been active in their dissent. Harris and Gallup
polls indicate that only about 20 percent of the Nation's college
students have participated in political or civil rights activities,
and this includes traditional political activities like the 1968 cam-
paigns of Senators McCarthy and Kennedy. An even smaller
number have participated in campus protests.
Within the "involved minority" are the radicals, the militants,
the active sympathizers, and the potential sympathizers.
The radical students those who have given up on society and
its institutions and would use violence to destroy them are very
few in number. Even on the larger and more active campuses like
Berkeley, where radical students tend to congregate, they repre-
sent a mere handful. Nonetheless, radical students exert an influ-
ence out of proportion to their number, and they may express
their extremism in acts of violence which trigger larger
disruptions.
The militant students essentially the New Left number
fewer than 100,000, less than 2 percent of the total student popu-
lation. They are now convinced that society and its institutions
have become corrupted mainly by a military-industrial complex,
but they are still largely committed to change rather than des-
truction. Students for a Democratic Society (SDS) has been the
216 Report of the Task Force on Law and Law Enforcement
most widely publicized and the most influential organization of
militant new left students. Formed in the early 1960's to develop
a new movement to affect American politics, SDS claimed about
7,000 dues-paying members last year, and a total of 35,000 mem-
bers in its several hundred local chapters. Data collected by the
Educational Testing Service reveals that in 1965 there were ''stu-
dent left organizations" on 25 percent of college and university
campuses; by 1968, the number had grown to 46 percent. Now,
however, SDS and the new left, like the old left before it, is
tearing itself apart in factional disputes.
Among the militant students are the militant black students
whose special interests and activities justify treating them as a
separate category. Organized mainly into black student unions
and Afro-American societies on scores of campuses, the black
students have confronted administrators and faculty with several
specific demands, and they have been militant in their objectives
and their tactics. Distinctions must be made with regard to black
students also, for not all of them are militants or even activists.
Between 4 and 5 percent of the student population might be
described as active sympathizers. Though they may not consider
themselves members of the new left, they are concerned with
reform. Their dissident views make them receptive to the argu-
ments and demands of the militants. The active sympathizers are
not committed to demonstration and disruption, and most of
them would probably find violent tactics distasteful. But they
respond to issues and could conceivably be "radicalized" in a
particular situation.
The remainder of the "involved minority" are potential sym-
pathizers. They tend to identify more with their fellow students
than with administrators or faculty. Though they may not devote
much of their time or energy to reform efforts they are more
likely to concur with these efforts than to oppose them. A given
issue or a particular incident (like the appearance of police on
the campus) might turn potential sympathizers into active sym-
pathizers very quickly. Surveys show that nearly 20 percent of
the "involved minority" feels a sense of "solidarity and identifi-
cation" with the new left.
In addition to differentiating among students it is important to
recognize that a substantial amount of the protest against col-
leges and universities particularly until recently was in
reality protest against the larger society. In the early 1960's stu-
dents used their colleges and universities as bases from which to
launch attacks against a system which had for three centuries
persecuted black Americans. In the mid-1960's, the Vietnam war
became the target of student protest, along with war-related ac-
tivities like military recruiting and defense research. In other
words, the young began to question the legitimacy of the society,
The Reform of the University 217
and it was inevitable that they should also come to question the
legitimacy of society's institutions. As the protest movement
evolved, the student attacks came to be directed at the colleges
and universities themselves, first as members or agents of the
"evil establishment," then as "reactionary" institutions in their
own right.
Viewing universities as a surrogate of the society was not
productive; they simply couldn't bear all the sins of society in
scapegoat fashion. Focusing on the universities for their own
sins, however, was another matter. There were enough things
wrong on the campus to sustain a vigorous protest movement,
and students soon learned that their confrontation tactics exert
an effective influence for reform.
THE NEED FOR REFORM
The students were not the first to conclude that higher educa-
tion needs reforming. The more perceptive of the faculty and
administration knew that. But students, unlike their elders, were
unwilling simply to point to problems and wait patiently for
change: they were determined that the university should move
promptly to mend its ways. They focused on three main areas :
1. Undergraduate Teaching
What Sidney Hook once described as "subtle discounting of
the teaching process" had become so unsubtle that it was now
obvious to everyone, most especially to the undergraduates. In
universities many of the teachers don't teach undergraduates,
they conduct research and work with graduate students. Those
who do teach carry heavier teaching loads and are as likely as not
to be graduate student instructors or junior faculty. Many are
highly specialized professionals who are strongly oriented to
their disciplines, and thus more inclined to teach their specialty
than their students.
William Arrowsmith, professor of classics at the University of
Texas, spoke out sharply and eloquently in a popular magazine
(an act that surely makes him an academic muckraker) :
What matters, then, is the kind of context that we can
create for teaching and the largeness of the demands made
upon the teacher. Certainly he will have no function or honor
worthy of the name until we are prepared to make the pur-
pose of education what it always was the molding of men
rather than the production of knowledge. It is my hope that
education in this sense will not be driven from the university
by the knowledge technicians. We will not transform the
university milieu or create teachers by the meretricious
218 Report of the Task Force on Law and Law Enforcement
device of offering prizes or bribes or teaching sabbaticals or
building a favorable "image." At present the universities are
as uncongenial to teaching as the Mojave Desert to a clutch
of Druid priests. If you want to restore a Druid priesthood,
you cannot do it by offering prizes for Druid-of-the-year. If
you want Druids, you must grow forests. There is no other
way of setting about it.
Former President of the University of Iowa, Howard R. Bowen,
said recently:
There is one aspect of academic life that has not changed
very much. That is the liberal education of undergraduates.
While much lip services is given to innovation, new tech-
nology, and the like, most teaching still centers around the
professor, the textbook, didactic lectures, close supervision
of the student, credits and grades. Whatever gain has been
made in effectiveness of instruction has occurred through
improved motivation of students, better secondary prepara-
tion, and improved qualifications of faculty not through
improvement in the mode of instruction in colleges and
universities.
It is a safe bet that the majority of students who earn the
baccalaureate degree manage to leave the university without
having had "the light turned on." The promises in the admis-
sions brochures notwithstanding, the "whole man" is often not
the concern of the university. A number of studies have failed to
find that the college has any significant effect in liberalizing or
liberating the undergraduate or in altering his structure of
values. The emphasis in most curricula has been professional and
preprof essional. Howard Bowen says :
The curriculum has little impact on the life, values, goals,
feelings, and deeds of the student. It fails to come to grips
with the universal problems of human life and with the
great issues of our times which do not fall neatly into the
disciplines. It often seems to the student sterile and irrele-
vant, and fails to motivate him or even repels him. . . . Also,
the curriculum, built up of randomly selected smatterings,
lacks integration.
2. Student Life
Until very recently, the student drew little water in the
academic sea. Leslie Stephen expressed a widespread attitude
when he said : "What a blessed place this would be if there were
no undergraduates! .... No waste of good brains in cramming
bad ones."
The Reform of the University 219
A university president, meeting with the Commission to dis-
cuss campus disorders, unwittingly declared : "I keep telling my
faculty that these days (added) we must listen to the students."
For many years, the concept of in loco parentis prevailed, and
the student faced on the campus the close supervision he would
face at home. Presently, the young are kicking the final breath of
life from this notion. They are demanding the right to be treated
as adults. The chafing rules smoking, drinking, sex, parietals,
dormitory hours, etc. are crumbling at a rapid pace. Last year,
campus protests against dormitory regulations were second in
number only to the protests against the Vietnam War.
Also, until recently, students had little or no say in the man-
agement of extracurricular affairs or in matters of student disci-
pline. Certainly they had no voice in the curriculum or the formu-
lation of university policy generally.
The massive growth of higher education has also led to condi-
tions which students find depressing. As campuses have tripled
and quadrupled in size some of them exceeding enrollments of
30,000 the student has felt himself relegated to the status of
computer card. Faced with a problem, he is shuffled from one
administrator to another in the growing bureaucracies made ne-
cessary by expansion.
Clark Kerr observed :
The multiversity is a confusing place for the student. He
has problems of establishing his identity and sense of secu-
rity within it. But it offers him a vast range of choices,
enough literally to stagger the mind. In this range of choices
he encounters the opportunities and the dilemmas of
freedom. The casualty rate is high. The walking wounded
are many. Lemfreiheit the freedom of the student to pick
and choose, to stay or to move on is triumphant.
The pressure of numbers is exacerbated by the pressure to
achieve. Joseph Katz and Nevitt Sanford wrote in the "Causes of
the Student Revolution" :
As is well known, the conditions of the post-Sputnick era
have led to a tightening of standards of academic perform-
ance and an increased demand upon quantity of work by
students. The resulting pressure is felt by good students as
well as poor ones. In the more selective schools, all the stu-
dents are able and well prepared, yet they still feel an enor-
mous amount of pressure, because of the grading curve and
the inclination of the faculty to assign more reading than
anyone can do. People usually ascribe these pressures to the
intellectual competition of the Cold War, but another factor
is the higher birth rate, which has considerably increased
the number of students applying to colleges and has thus
220 Report of the Task Force on Law and Law Enforcement
provided both an economic and a moral base for increased
selectivity.
Secondary school teachers report that junior high school stu-
dents worry about qualifying for admission to a good college or
university.
3. The University's Role in Society
For the most part, colleges and universities have gone about
their business asking nobody's "by your leave." Faculties re-
served the right (which they frequently did not exercise) to set
academic policy ; everything else was generally left to the admin-
istration and the trustees. If higher institutions deplored the
plight of the Negro in America, they did so without stretching
themselves to do anything about it. Colleges and universities
came nowhere near reflecting in their student bodies, faculties, or
administrations the proportion of blacks in the society at large.
If a university needed room to grow, it took steps to acquire land
with little more than passing thought to the disruptions that
might ensue in the neighboring community. Many universities
cheerfully accepted funds for programs of special interest to one
or another special interest group be it business, a foundation, or
the Department of Defense. They aided in the recruitment of
military officers with Reserve Officer Training Programs and
complied with a law that specified credit for substandard courses
and professorial status for unqualified military officers. Some in-
stitutions found nothing contrary to the spirit of free and open
inquiry in conducting classified research on the campus.
For today's students, such a posture deeply implicates the uni-
versity in what they view to be the worst shortcomings of society.
The Report of the Select Committee on Education at Berkeley
eloquently describes how the militant student views society and
suggests why students have become disenchanted with the insti-
tution they know best and believe to be a molder of society.
As these students see it, while the dominant group claims
to champion freedom, religion, patriotism, and morality, it pro-
duces and condones slums, racial segregation, migrant farm la-
borers, false advertising, American economic imperialism, and
the bomb. In private life, moreover, the students find as much
immorality and injustice as in public life. They commonly explain
it as the product of an all-pervasive hypocrisy.
These examples, though not all-inclusive, at least indicate the
need for reform. They should help to explain the frustration of
students and their new militancy on the campus. But if the stu-
dents have a right to press for reform and they obviously do
they also have an obligation to try to understand the university,
to learn how it has reached its present state, and to ponder the
The Reform of the University 221
methods and goals of reform and their impact on the university.
Someone once said that no one should meddle with a university
who does not understand it and love it. The comment was prob-
ably prompted by a realization that the university is a rather
fragile institution, despite the fact that it has endured for a
thousand years and has survived formidable threats to its integ-
rity and freedom. The university is fragile because it is no more
than people of good will committed to some very lofty principles :
freedom, tolerance, mutual understanding, open communication,
truth, and honesty. These are surely elusive principles difficult
to attain, easy to lose. They are, however, the only things that
distinguish a university from any other cluster of buildings in-
habited by humans with all their vested interests and venal short-
comings.
By its own actions, the university has compromised some of
these principles. Great social forces working on the university
have also jeopardized them. Now, in a righteous frenzy to reform
the university, its active critics imperil these principles.
Freedom, especially, is in danger.
THE UNIVERSITY TRADITION IN AMERICA
Freedom what Harvard's Nathan Pusey has called "the
freedom of the mind on which all other freedoms depend" is
both the gift to and the gift from the University. Only if they are
independent and autonomous can universities perform the unique
tasks which tradition and society demand of them. And only if
these tasks are performed can society itself hope to remain free.
Universities perform many functions some by choice, some
by demand but their central and unique missions are to seek
and disseminate truth, to transmit the intellectual and cultural
heritage from generation to generation, and to evaluate society
and, when necessary, to serve as its critic.
"To fulfill these functions in the service of the community,"
writes Cambridge Univresity's Sir Eric Ashby, universities
"need the freedom to choose their own mode of action as well as
continuous and critical awareness of the real needs of the com-
munities they serve which may not always be those that the
community urges upon them so clamorously at any given moment
of time."
These are dangerous duties, and, because they perform them,
universities occupy a privileged position. Society grants them the
material support they need, but permits them the independence
and autonomy to govern themselves. Universities are fed partly
so that they can bite the hand that feeds them. No other institu-
tion is so favored : but then no other institution fulfills this role.
The tradition on which this unique freedom is based began
222 Report of the Task Force on Law and Law Enforcement
with the medieval university. It held that universities must be
free to determine their own goals and to select the means to
accomplish them and to do both without interference from out-
side authority.
The tradition has survived because it is in society's own best
interest, because scientific and social progress depend upon a
search for truth unimpaired by arbitrary limitations, because an
open society requires liberally educated and thinking citizens,
and because "without fearless criticism, the nation would lose its
power of self -renewal."
Whenever the freedom of universities is in jeopardy so is the
freedom of the nation, for a society can only be as free as its
universities. Or as Samuel Gould, president of the State Uni-
versity of New York, told his State legislature: "A society that
can no longer trust its universities can no longer trust itself."
It is this freedom, this unique character of the institution that
is at stake in the present struggle for control of the university.
Unfortunately, many of those who would reform universities nei-
ther understand them nor love them. Their intent may be noble,
but their actions often are not. Their zeal may not be question-
able, but their goals often are.
Jacques Barzun, former provost of Columbia, said in his book,
The American University:
The fact remains that the university as an institution has
become the object of an endless guerrilla [war], part orga-
nized, part fortuitous. It is perhaps time that this institu-
tion, which is still loved and respected, even by its impatient
clients should be better understood. The subject is complex
and variable, but not beyond comprehension.
The present crisis in the American university is a crisis of
purpose, organization, and governance. The university is
confused about its mission, inadequately structured to do
what is demanded of it, and, as the present campus turmoil
indicates, virtually unable to govern itself.
It is true, as critics charge, that universities are in trouble
today because they have not changed to keep up with the condi-
tions of a modern post-industrial state. But is is equally true
though the critics seldom realize it that universities face this
awesome crisis just because they have changed profoundly over
the past several decades. This is not doubletalk. It is an acknowl-
edgment that powerful external forces have greatly changed the
American university and made it what it is today.
The American university was born nearly a hundred years ago
as a new species of institution, and it contained the seeds of the
crisis that now plagues it. It was conceived in the period of the
land-grant movement during and after the Civil War, came of
The Reform of the University 223
age during World War II along with the scientific revolution, and
matured into a powerful and affluent institution worth fighting
over during the past decade.
The colonists brought with them the English undergraduate
college with its emphasis on religion and its mission of teaching
the classics to the upper classes. Onto this stalk, late in the 19th
century with the founding of Johns Hopkins as the "first true
university," was grafted the German university concept of aus-
tere devotion to scientific research and scholarship and graduate
education.
This in itself was an unlikely blend, but the new hybrid was
then nourished in the soil of American utilitarianism and egalita-
rianism, from which came the land-grant movement with its ded-
ication to mass higher education and service to society.
The land-grant movement introduced three revolutionary ideas
into American higher education and launched three major trends
which, in the past century, have fundamentally shaped higher
education in this country. First, the land-grant movement created
the precedent of direct federal financial support to higher educa-
tion. Second, the movement established the concept of enlisting
the resources of colleges and universities to meet pressing na-
tional needs. And third, the land-grant movement began the
trend toward mass higher education.
The land-grant movement was marked by three major acts:
(1) the Morrill Act of 1862 which awarded federal lands to the
states to aid higher education and to endow state colleges to
promote the "liberal and practical education of the industrial
classes in the several pursuits and professions of life"; (2) the
Hatch Act of 1887 which provided, for the first time, federal
funds to states for "practical research" ; and (3) the Second Mor-
rill Act of 1890 which provided direct federal money grants to
land-grant colleges for instruction in the specific subjects of agri-
culture, engineering, and the natural sciences. ( Significantly, the
second Morrill Act provided that Negroes would benefit from its
provision, although it allowed for "separate but equal" treat-
ment. )
These acts were enormously significant. They were both prag-
matic and democratic. In the latter half of the 19th century, the
United States desperately needed the skilled manpower, the
knowledge, and the technology to advance industrial and agricul-
tural expansion. The land grant acts met this need ; they establ-
ished "democracy's colleges" to give practical training to the sons
and daughters of the working classes and to improve research
and instruction in practical subjects. The land-grant movement
laid the basis for the greatest system of public higher education
in history a system that has flourished with a growing commit-
224 Report of the Task Force on Law and Law Enforcement
ment to a firm national policy that every American child is enti-
tled to all of the education he is capable of.
The hybrid university of the late nineteenth century fared well
in those less sophisticated and less frenetic times. In fact, if ever
the term "community of scholars" had meaning, it was then.
Untroubled as yet by the pressures of mammoth enrollments and
the scientific revolution, universities conducted their affairs in
relative harmony.
World War II changed all that. The war brought an end to the
innocence of the university and ushered in a new era which has
seen more changes in higher education than in all of the previous
years combined.
When the war broke out, the government's own research labo-
ratories proved inadequate to provide the research and tech-
nology necessary for a full-scale war effort. Washington, there-
fore, turned to the universities, and they responded with an en-
thusiasm to match that of the milions of men who were rushing
to the colors. If this was the beginning of today's infamous "mili-
tary-industrial complex," it was at least conceived with the best
of intentions : the survival of the free world.
Before World War II, scientific research was somewhat limited
in the universities. Few dollars were spent on it, and the giants
of the scientific community fashioned their equipment from bits
of metal and glass, left over machine parts, and ample measures
of genius. Some $15 million in federal funds went to higher edu-
cation for research in 1940 most of it to land-grant institutions
for agricultural research. In 1944, a single agency (the Office of
Scientific Research and Development) spent $90 milion on con-
tract research with universities.
The research effort in universities did not end with the War.
Millions of veterans returned from the battlefields and flocked to
the campuses. The tensions of the cold war prompted a massive
and continued defense effort. Federal dollars flowed in greater
amounts, mostly to the top 50 universities. The trends toward
scientific research, academic specialization, and scholarly publica-
tion that began to be visible in the 1930's accelerated in the
1940's and have continued to grow in scope and intensity through
the past two decades.
The decade of the 1960's has represented an unprecedented
period of affluence and influence for the American university.
The land-grant movement planted the seeds of mass education,
research, and service to society. These seminal ideas blossomed
during and just after World War II. The fruits have ripened
during the past 10 years. Some statistics suggest the scope of the
changes that have occurred in just 30 years.
(1) In 1949, there were 1,700 colleges and universities in
The Reform of the University 225
the United States and they enrolled 1.5 million students. In
1969, there are more than 2,300 higher institutions with
more than 7 million students.
(2) The federal government spent about $15 million on
the campuses in 1940, nearly all of it for agricultural re-
search. In 1968, the federal government's support to higher
education approached $5 billion, of which about $1.4 billion
was expended for on-campus research. As recently as 1958,
the great bulk of federal support to higher education went
for research; now some 70 percent of it goes toward such
things as new buildings, student aid, and general grants to
institutions.
(3) The states spent less than $154 million on higher edu-
cation in 1940 ; today they spend about $5 billion on the
campuses.
(4) In 1940, higher education's property and endowment
was valued at $4.5 billion ; last year the amount was nearly
$30 billion.
No one who knew the universities of 1940 can say they have
not changed. They have changed greatly and grown enormously,
and tremendous strains have resulted. The pace has been incre-
dibly swift and it proceeds ever faster. The hybrid university of
the late nineteenth century is now full grown and so are the
problems that were built in at its birth. Looking back, one can
easily see that the potential for conflict was built in. The Amer-
ican university embodied three great missions teaching, re-
search, and service. Each now pulls it in a different direction. In
fact, in the context of universal higher education and American
egalitarianism these three missions may well be inherently in-
compatible in a single institution.
AMERICAN HIGHER EDUCATION
It is also necessary, if the present crisis is to be understood,
to realize the meaninglessness of the term "American higher edu-
cation." This suggests a system, an orderly and rational typology
of institutions which does not, in fact, exist. Most people use the
terms "college" and "university" generically to mean an institu-
tion of higher learning. This is understandable, but it leads to
serious misunderstandings. The 2,300-plus institutions of higher
learning in the United States are a diverse collection of institu-
tions private and public, secular and religious, large and small,
old and new, urban and rural. There are senior "universities"
which spend millions of dollars on research, train graduate stu-
dents and operate institutes and professional schools. There are
"universities" which do none of these things. There are 4-year
226 Report of the Task Force on Law and Law Enforcement
colleges which concentrate on undergraduate education (some
call themselves universities) and there are four-year colleges
which offer advanced degrees and have professional schools (and
do not call themselves universities). There are an increasing
number of " junior colleges" which are 2-year institutions and
which offer vocational training or academic preparatory work.
There are technical instituties, arts schools, music schools, mili-
tary schools, etc. and they are all institutions of higher
learning.
This confusion in terminology and definition is symptomatic
of the more harmful confusion of purpose. By lumping all of
these institutions together, we fail to differentiate on such impor-
tant questions as what they should do and how they should
do it. Higher education in the United States would be in a much
more felicitious condition if society and higher education itself
had long ago realized and acknowledged that there are many
different types of institutions and that their functions, struc-
tures, and methods of governance should reflect these differences.
What is "right" for Harvard is not likely to be "right" for
Catonsville Community College and vice versa, though sometimes
it seems that neither Harvard nor Catonsville (nor society, for
that matter) knows it.
In the best of all worlds, perhaps, a system of higher education
would lead to some logical division of labor. The universities
some 150 graduate and research institutions would truly be in-
tellectual communities devoted to scholarly inquiry and training
at the highest levels. The colleges both public and private
would devote themselves to undergraduate teaching primarily.
And the junior colleges would offer training programs suited
primarily to the needs of the communities in which they exist.
Each type of institution would serve society in ways most com-
patible with this clearly perceived primary mission and with its
resources. Each would operate at its optimum size and efficiency.
Faculty and students would choose the college or university best
suited to their needs and abilities. Each institution would receive
from a variety of sources the financial support required to fulfill
its stated goals, and society would wisely value and reward each
type of institution for its own distinctive contribution.
This is not the best of all worlds. Universities are expected to
teach undergraduates and graduates in large numbers, to conduct
research, and to provide unlimited services to society and to do
each exceedingly well. Society does not value each function
equally, but prizes research and service above teaching, and
spends its money accordingly. Most students and faculty follow
the money and the prestige it buys, regardless of their needs and
abilities. As a consequence, some universities are monstrously
The Reform of the University 227
large and cannot build fast enough to house their students or
their programs. Some colleges are small and have great difficulty
finding money, faculty, and students. In the large universities,
students complain about being computer cards, about bureauc-
racy, about poor undergraduate teaching. In the small colleges,
faculty complain about lack of money, research, and prestige.
Junior colleges want to be four-year colleges, which in turn want
to be universities. All want more support, better faculty, brighter
students, and the coin of the academic realm prestige.
Nobody, it seems, is happy in higher education any more.
Because the universities set the pattern for all of American
higher education, what happens to them is extremely relevant to
all institutions. If academic freedom and institutional autonomy
are to be preserved or lost, it will be in the university that the die
is cast. The crisis in function, structure, and governance in the
university wilts the ivy across the whole spectrum of higher in-
stitutions. It is in the universities that reform or revolution must
begin.
Consider some of the developments which have led to the
crisis :
The demand for knowledge and technology has put a premium
on research and has created a single track system for individual
rewards. To a young academician, research and publication are
the only sure path to promotion and scholarly prestige.
A graduate student in a Southern state university surely spoke
for many of his colleagues when he said :
I don't really care much for research; I'd rather teach.
But that would immediately put a lid on my career and doom
me to second class citizenship in the academic world. So I'll
play the game; dig deeper and deeper into my speciality,
scratch for government grants, and publish as much as pos-
sible.
Research has also fostered a parallel single track for institu-
tional advancement. Research attracts money and the best
faculty, and a college that wants its share of both is under con-
siderable pressure to develop graduate education and research
programs. This was one of the problems that led to the faculty
disaffection at San Francisco State College. Faculty there re-
sented the fact that Berkeley across the Bay had cornered the
market on research and the money and prestige that follows it.
The same situation exists in many state systems, where public
colleges are pressing for the authority to offer the Ph.D. and thus
to become competitive with their sister universities in the search
for faculty, students, and federal funds. Even small private
liberal arts colleges are flirting with the notion of adding gradu-
ate programs for the same reason.
228 Report of the Task Force on Law and Law Enforcement
The trend makes the lip service to the value of diversity in
higher education ring ever more hollow. If the colleges feel com-
pelled to emulate the senior universities, they will not only lose
their own distinctions, but they will simply add to the number of
mediocre universities.
Research and the scientific revolution (of which research is
both cause and effect) have led to the increased specialization
and professionalization which have caused painful problems
for both faculty and students. Faced with a curriculum con-
stantly expanding to embrace ever more academic specialties,
the student despairs of what to learn: and the faculty of what
to teach. While the subject matter fragments and fragments
again, the faculty struggles vainly to bridge the gaps of com-
munication and intellect by building interdisciplinary bridges.
Editor, writer, and professor Irving Kristol has written:
Only on a few small campuses does "the professor" still
survive. The "professionalization of American life" has radi-
cally emptied that category. A professor of sociology is
now, by profession, a sociologist. He is not a member of
any particular campus community, but of a nationwide
nay, international corporate body of learned men. He is
not even likely to reside on any one campus long enough
to be a familiar figure there; and, while in residence, he is
taken to be and regards himself as a representative of
his discipline within the academic congregation. His stand-
ing and his prestige derive exclusively from his reputa-
tion among the 11,000 members of the American Sociologi-
cal Association. The fact that he happens to teach is inci-
dental. Unfortunately, however, the overwhelming major-
ity of the members of these academic professions are
fated to spend their lives doing what is incidental merely
teaching. This fate becomes, for most of them, a confes-
sion of professional failure.
The growing emphasis on service to society has many of
the same consequences as the emphasis on research. Service,
like research attracts money most of it from the federal gov-
ernment, but significant amounts from business, foundations,
and state governments.
As far as the student is concerned, service like research
takes the professor from the classroom. And though the profes-
sor may earn extra income or gain in prestige, service repre-
sents for him another major commitment of his time. A promi-
nent professor of biology says: "Considering my research, my
teaching, my commitments to university committees and admin-
istration, my membership on government panels, and my various
consulting jobs, I have committed 150 percent of my time."
The Reform of the University 229
The university is expected to help solve society's many prob-
lems from rescuing ghetto children to purifying the air,
from advising government officials to developing new weapons
systems.
The University's response during the past few decades to
society's needs for science and technology has been nothing
short of miraculous. Today, however, there is a growing demand
for answers to social and political problems. Society is con-
cerned about law and order, urban blight, overpopulation, re-
gional government, racial discrimination, poverty, education,
and a myriad of other "nonscientific" problems. Having wit-
nessed the miracles in the march of science, Americans now
look for miracles in the social and behavioral sciences to help
solve problems which in many cases have been caused by sci-
entific developments. Neither the institutions nor the scholars
are equipped to provide these answers. Their response, none-
theless, is to call for more research (almost a conditioned
response now) in the social sciences, to think in terms of insti-
tutes, centers, even the creation of a National Social Sciences
Foundation parallel to the National Science Foundation.
Useful as such increased emphasis on social science research
may ultimately be, it is a somewhat sterile answer to society's
desperate need for solutions to staggering social problems. A
more effective response the one which activist students seem
instinctively to feel and express in their demands for curricular
and academic reform is to reemphasize teaching. The great and
unique contribution higher education could make to the social
revolution which confronts us in the second half of the twen-
tieth century is to produce a new breed of American young
men and women who are ' 'turned on," who will reassert a
dying concept of individual worth, who are committed to clos-
ing the gap between the promise and performance of the Ameri-
can democracy. Research on the phenomenon of racism will not
accomplish as much as enlightened curricula and teaching de-
signed to liberate men from their prejudice and ignorance.
The debate over higher education's obligations to perform
services for society has been raging for many years, and it
will rage for many more. Some urge the academy to resist the
pressure for more and varied services, arguing that universi-
ties have become "supermarkets" or "service stations." Others
strongly disagree and argue that colleges and universities ful-
fill their noblest goal when they serve society even to the
point of attending to the moral and spiritual health of society.
Students take both sides of the debate condemning institu-
tions on the one hand for serving society by conducting mili-
230 Report of the Task Force on Law and Law Enforcement
tary research, and condemning them on the other hand for not
serving society by failing to lead the battle for civil rights.
This raises the difficult issue of when a college or univer-
sity should take a stand as an institution on political, moral,
or social issues. Much of the disenchantment of today's youth
seems to turn on this point. They cannot reconcile the existence
of an affluent and aloof institution in the midst of evil and
injustice. They call upon their universities to do battle.
This is a hazardous course the students urge. A university's
function is to universalize. All action is highly specific, and
when an institution acts in moral or political issues, it jeopar-
dizes its basic mission of providing an atmosphere for the
objective and dispassionate search for truth. Sociologist Nathan
Glazer puts it this way :
There may be times when a university should hurl all of
its resources into the battle against some great evil-but
there always have been and always will be grave problems,
and there will always be those who would propel the uni-
versity into conflict.
Some issues impinge upon the functions of the university and
demand that the university take a stand. Assaults on academic
freedom, compulsory loyalty oaths, legislative interference in
campus governance are such issues. But to extend this involve-
ment as some students and faculty demand into contemporary
political and social issues would seriously impair the /univer-
sity's obligation to transcend the times through which it passes
and its freedom to reflect without bearing the responsibility to
reform. Moreover, institutional neutrality does not prevent indi-
viduals within the university community from taking stands
on moral and political issues indeed, institutional neutrality
does not prevent individuals within the university community
from taking stands on moral and political issues indeed, insti-
tutional neutrality makes such individual action possible with-
out fear of retribution from society.
The dilemma for higher education is a painful one, dependent
as it is upon society for support. The tough questions remain
unanswered : Which services are legitimately the business of the
university, and which would be better performed by some other
institution? How can the university remain sufficiently de-
tached from the problems and politics of contemporary society
to preserve their objectivity? How can the university remain
detached without losing touch with the needs of society?
Society's needs are so urgent that it may not wait for higher
education to answer these questions. It may decide.
Sir Eric Ashby notes :
The Reform of the University 231
. . . Forces from outside the university which formerly
had only a marginal effect upon its evolution are, in the
next generation, likely to exert a powerful influence on
its evolution. Governments which heretofore had been con-
tent to abide by a convention to leave the universities alone
are now tempted to exert more and more dirigism upon
them. Querulous protestation about this would be useless.
Universities are enormously expensive to run. None of them
can hope to survive without patrons. Between universities
and their patrons there have always been buffers of con-
vention. Their patron is now the man in the street; uni-
versities must negotiate with him and establish new con-
ventions which safeguard their heredity.
UNIVERSITY GOVERNANCE
This confusion of purpose, then, has led to many of the
most serious problems on the campus. They and the present
disarray in higher education have raised questions about the
ability of the university to govern itself.
The power to govern in higher education has been tradition-
ally shared by three groups: Trustees, administrators (mainly
presidents), and faculty. Alumni, donors, students, and others
have sometimes exerted an influence, but they rarely shared in
governance.
The trustees, in most cases, are granted by law full authority
over the institution. But custom is stronger than law in this
area, and the trustees delegate most of their power most of the
time to the president.
In theory, the president's powers are wide ranging; in fact,
he relies more on persuasion than power to accomplish any-
thing. If he is to lead at all, it must be by consensus.
Tradition gives to the university faculty the power to deter-
mine the academic and intellectual style and substance of the
institution. Their actual power, says Ford Foundation President
McGeorge Bundy, is far greater: "It is the faculty which is
the necessary center of gravity of the policies of the univer-
sity, for teaching, for learning, for internal discipline, for the
educational quality and the character of the institution as a
whole." But Mr. Bundy goes on to argue that the faculty has
usually used its power in a negative way, and, in its preoccu-
pation with personal professional matters, has left the task of
governance to others. (In many instances, the faculty has not
acted because it has not really perceived its potential power
232 Report of the Task Force on Law and Law Enforcement
or its rightful responsibilities. In part, this is a legacy of an
era of strong authoritarian presidents.)
The net effect of this has been a power vacuum one which
activist students have begun to fill with astonishing political
sophistication.
It must be kept in mind, as one regards with contempt this
management consultant's nightmare, that we have deliberately
built over the past century an institution of shared power.
When one or another group has become so powerful as to upset
this delicate balance, the results, as revealed by history, have
been sad for the university. Such a scheme of shared power
seems to be in keeping with the university's style of operating,
with its dedication to thorough discussion and deliberation of
every issue before taking a decision. The difficulty today is
that the issues proliferate and the demand for immediate action
is compelling. Universities are being pressured into making
decisions which they are incapable of making (without creat-
ing ill-will and dissention) in a matter of hours or days.
The result of this awkward situation is either a kind of insti-
tutional paralysis which is likely to lead to a student revolt
or arbitrary action by one group on the campus which is likely
to lead to the kind of campus war which Clark Kerr described
and fell victim to.
Once again, the situation tends to make everyone unhappy.
The trustees feel their legal authority is being eroded and
their ability to act constrained. The President is caught between
opposing forces, none of whom he is likely to please. The faculty,
with other fish to fry, resents the endless meetings and diver-
sions. And the students think that all the others are really only
delaying and pettifogging in an effort to avoid doing anything
meaningful. Meanwhile, legislators, alumni, parents and others
on the outside looking in grow increasingly certain that no-
body is in charge and that everybody is irresponsible.
If the university indeed appears to be irresponsible, if so-
ciety does lose confidence in the university's ability to determine
its own goals and manage its own affairs, then the danger to
freedom is indeed great, for the ultimate fate of the university
rests with society.
"The abstention of government from major intervention in
the affairs of the academy," writes a political scientist, "is not
the result of a recognition of an absolute right of the academ-
ies to do with their hallowed halls anything whatsoever, no
matter what the subsequent impact on society may be. Rather
it is conditioned upon academics meeting their obligations and
responsibilities both as members of a self-regulating profes-
The Reform of the University 233
sion and as citizens of a free society. And if this is not done
even the most liberal minded of governments might well be
forced into a position of exercising its residual power of regu-
lation in the interest of order."
What most people especially students fail to see is that
governance is not the university's strong suit. Unlike the state,
the academy's primary function is not to govern or rule. By
forcing the university to emphasize governance, militant stu-
dents and faculty threaten to destroy the essential nature of
the institution which has made it worth trying to control.
Robert Brustein makes another important point. The young,
he says :
Are creating conditions in which it is becoming virtually
impossible to do intellecutal work. In turning their political
wrath from the social world, which is in serious need of
reform ... to the academic world, which still has consid-
erable value as a learning institution, they have deter-
mined, on the one hand, that society will remain as venal,
as corrupt, as retrogressive as ever, and, on the other
hand, that the university will no longer be able to proceed
with the work of free inquiry for which it was founded.
As an added irony, students, despite their professed dis-
taste for bureaucratic administration of the university, are
now helping to construct through the insane proliferation
of student-faculty committees a far vaster network of bu-
reaucracy than ever before existed. This, added to their con-
tinued meetings, confrontations, and demonstrations not
to mention occupations and sit-ins is leaving precious lit-
tle time or energy either for their intellectual development
or for that of the faculty.
Nonetheless, the university must fulfill what has been called
its "order-teaching and order-maintenance" function. Unless
the university community upholds a code of behavior which
protects the rights of all to think, study, and speak, it will
cease to exist as a university. Violence and disruption are sim-
ply incompatible with the concept of rational discourse which
must characterize the academy. Moreover, one must wonder
with some apprehension what the effect will be on students
who spend their college years in an atompshere of confronta-
tion, disorder, and disruption. Students learn dangerous lessons
when they learn that change can be accomplished by threat
and violence, that there are no penalties for the violation of
communities rules, that the right of others can be disregarded
in the name of a cause.
234 Report of the Task Force on Law and Law Enforcement
CONCLUSION
The university, then, has changed too fast but not fast
enough. It has undergone revolution but not reform. It is in
danger of losing its traditions of the past and of failing to
keep pace with the future. It is a center of power in the post-
industrial society, but seems powerless in its present crisis.
Sir Eric Ashby says :
Universities . . . are mechanisms for the inheritance of
culture. Like other genetic systems they have great inertia.
They are living through one of the classical dilemmas in
evolution. They must adapt themselves to the consequences
of their success or they will be discarded by society; they
must do so without shattering their own integrity or they
will fail in their duty to society.
It is an awesome challenge, a hazardous blindfolded walk on
the high wire, made infinitely more difficult and dangerous by
those who push and pull it and hasten it onward.
Sir Eric has a somber warning for the impatient reformers :
. . . Academic evolution like organic evolution is ac-
complished in small continuous changes. Major mutations
are generally lethal. And changes must be based on what
is already inherited.
A PORTFOLIO OF
LITHOGRAPHS ON
CRIME AND
VIOLENCE
235
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A PORTFOLIO OF LITHOGRAPHS ON
CRIME AND VIOLENCE
Jose Luis Cuevas
This portfolio of lithographs by Cuevas depicting crime was made
available to the Task Force through the courtesy of Touchstone Publishers,
Ltd., 134 East 70th Street, New York, N.Y.
Cuevas' works are in the permanent collections of leading museums in
the United States, France, Peru, Venezuela, and Colombia. He has illus-
trated a number of books, notably "The Works of Kafka and Cuevas"
(1959) and his autobiographical "Recollections of Childhood" (1962). A
portfolio of 12 lithographs, "Charenton," was published by the Tamarind
Shop, Los Angeles, in 1966. His recent set of lithographs, "Crime by
Cuevas," has been widely acclaimed here and abroad.
The notes for each lithograph were prepared by Mr. Luis Lastra, a close
friend of the artist and editor of the Art of Americas Bulletin. Mr. Lastra
was assisted by Miss Jane Harmon, of the Visual Arts Division of the Pan
American Union, who provided the translation from the Spanish text. The
prefatory note was prepared by David P. Stang.
PREFATORY NOTE
Throughout this report on violence and crime, we approach
the subject matter armed only with the tool of reason. We
attempt to analyze the problems of a violent society by stand-
ing at a distance, free from emotional involvement, employing
dispassionate rationality.
In one regard, this is a good thing. It is good because, in a
sense, it is all we are capable of doing. Yet in another sense,
limited by our training, we attempt to evaluate a subject the
very nature of which involves irrationality. Reason can only
deal with that which is susceptible of being comprehended by
reason.
Violence and crime, for the most part, are not phenomena
237
238 Report of the Task Force on Law and Law Enforcement
which represent the product of man's rational achivements. On
the contrary, violence and crime are more often the expression
of what the ancient philosophers called passion.
The jealous husband, although capable of reason, abandons
it by momentarily subordinating rationality to a fit of passion.
He murders his unfaithful wife, or her lover, or both, and
sometimes himself as well.
The law in its majesty makes allowances for this. Instead
of convicting the killer of murder in the first degree which
by definition involves a cold blooded pre-mediation, supposedly
free from compulsion the law finds the killer guilty of mur-
der in the second degree or of manslaughter. These latter of-
fenses are meant to apply to persons whose principal motiva-
tion was not reason but passion.
Yet ironically the combination of reason and law from the
time of its ancient origins has been unable to prevent jealous
husbands from taking to fits of passion which result in the
murder of their unfaithful wives. So too it has been unable
to prevent Cains from slaying Abels, parents from maliciously
beating their children. Nor has it been able to deter the emer-
gence of men like the Marquis De Sade, Jack The Ripper, or the
Boston Strangler. Neither law nor reason was able to prevent
the Israelites from battling the Philistines or the East from
waging war with the West. Nor was either reason or law able
to prevent the violent clashes between labor and management
which occurred in this country earlier in the century, the vio-
lence on the campuses and in the ghettos which has happened
more recently, or the violence of high suicide rates in the mod-
ern, tranquil, law-abiding countries of Scandinavia.
In a sense, then, in our applying reason and law to the sub-
ject of crime and violence, we are handicapped. Worse yet, our
efforts are bounded not only by the limits of the tool we utilize
to treat the subject, but by the pervasive, complex and irre-
pressible nature of the subject itself. We are not dealing with a
phenomenon which has had its birth in America of the nineteen-
sixties, but with a problem that has existed since mankind
was born.
We are here dealing with one small variation on the ageless
theme of good and evil, of right and wrong, of love and hate.
There is a mystery about this topic which transcends reason
and which inescapably penetrates to the very core of the hu-
man soul.
Carl Jung, the distinguished analyst and moral philosopher,
once noted :
Even on the highest peak we shall never be "beyond
good and evil," and the more we experience of their inex-
A Portfolio of Lithographs on Crime and Violence 239
tricable entanglement the more uncertain and confused
will our moral judgment be. In this conflict, it will not
help us in the least to throw the moral criterion on the
rubbish heap and to set up new tablets after known pat-
terns; for, as in the past, so in the future the wrong we
have done, thought, or intended will wreak its vengeance
on our souls, no matter whether we turn the world upside
down or not. Our knowledge of good and evil has dwindled
with our mounting knowledge and experience, and will dwin-
dle still more in the future, without our being able to
escape the demands of ethics.
But in each of us there is a desire to forget that we must
constantly choose and be bound by our choices. The more diffi-
cult the moral decision the more we try to avoid it. As Dostoy-
evsky so dramatically noted in his Brothers Karamazov:
Man prefers peace, and even death, to freedom of choice
in the knowledge of good and evil. . . . Nothing is more
seductive for man than his freedom of conscience, but
nothing is a greater cause of suffering.
Indeed, as haunting as the conflict we often face in trying
to repress almost irrepressible impulses to do evil to our fellow
man, or to ourselves, is the companion dilemma of being forced
so often to make "free" moral choices without knowing with
comfortable certainty that what we choose is right or wrong.
It is this rhythm of good and evil which plays in the -soul
of each of us, beyond the limits of reason and law, that Cuevas
so forcefully portrays in his series of lithographs on crime.
It is the frightening almost Sisyphean constancy of the
drama of good and evil, of victim and criminal, that is the
theme of his art and the limitation of our Report.
240
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I j 31 I, ' 1
A Portfolio of Lithographs on Crime and Violence 241
The first lithograph in this Cuevas portfolio is a self-portrait
in which the artist represents himself as a juvenile delinquent.
Curiously, it is a self-portrait after death as evidenced by the
bullet wounds on the forehead.
All of the elements of the composition emphasize anguish
and desperation: the complex lines curve down the face dis-
torting the expression; the intense, fixed look seems to be a
plea for help, demanding that we participate in the boy's
drama ; the bullet wounds remind us that it is too late.
This is a poignant introduction to the series in which the
artist has placed himself in the role of both criminal and vic-
tim. In the prints that follow Cuevas suggests that in every
individual there are latent criminal tendencies as well as re-
curring fears of being victimized by crime.
This perception of Cuevas has an almost oriental air about
it, and is suggestive of the Asian poet Coomarasivamy's state-
ment that, "In reality, slayer and dragon, sacrificer and victim,
are of one mind behind the scene. . . ."
"TITLE PAGE": SELF-PORTRAIT
242 Report of the Task Force on Law and Law Enforcement
I
-x.
A Portfolio of Lithographs on Crime and Violence 243
The horror film and the literature of the macabre have had
a haunting and inescapable impact on Cuevas since his child-
hood. Here, the artist introduces us to his private gallery of
sinister characters, existing in part in reality and in part in
his imagination. His figures are not unlike those drawn by
Grosz, who presented the decadent cafe society of the 1930's,
or Hogarth, who depicted an 18th-century life style of de-
pravity.
In the lineup for identification are Raskalnikov, the murderer
relentlessly pursued by his conscience; the Marquis de Sade,
with his brilliant imagination given to sado-masochistic adven-
tures; the Man and the Beast, the romantic representation of
the eternal struggle between reason and control versus mad-
ness and violence. Here too is the representation of good and
evil, the Good being the fat creature who indifferently holds a
poster with the image of the Quasimodo-like figure, the Bad.
At the bottom center of the print are two figures whose necks
are attached by a single rope; the movement of each would
necessarily effect the other. A steel ball representing fate is
suspended between them. Should the ball drop the figures'
heads would violently collide.
"HISTORY OF CRIME"
244
Report of the Task Force on Law and Law Enforcement
A Portfolio of Lithographs on Crime and Violence 245
Rasputin was the victim of one of the most sordid crimes
in political history. Because of his influence over Empress
Alexandra, whom he seduced by means of his personal magne-
tism, doubtful religious doctrines, and a supposed knowledge of
medical remedies that would cure her son, he became one of
the principal figures in the court of Czar Nicholas II, advising
him on all matters of political importance.
Outraged by his unscrupulous tactics as well as by the fact
that their positions had been usurped by a peasant, a group
of nobles invited Rasputin to a feast on Christmas Day, 1917,
for the sole purpose of killing him. He was poisoned, stabbed,
and shot and, incredibly, was still breathing when thrown into
the Neva River. A year later his body was exhumed, exhibited
publicly and burned.
By his choosing to do a portrait of Rasputin, Cuevas is sug-
gesting the calamity which necessarily follows when men cast
aside the universal moral code of love, dignity and self-respect.
That violence breeds violence is borne out by the fate of this
infamous man.
'RASPUTIN"
246
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A Portfolio of Lithographs on Crime and Violence 247
In this lithograph Rasputin seems to foresee his fate: his
expression is brutal and hypnotic; his hands are clasped in a
frozen position.
Rasputin was the product of the oppressed Russian peasantry,
and his ambitions developed in direct proportion to the social
abuses he suffered. Once in the position of power, he, how-
ever, became the oppressor and the object of hatred for the
group temporarily subdued. As the friction developed between
the rulers and the ruled, the situation became increasingly
unstable and resulted in violence. The violence escalated and
Rasputin was cruelly put to death. The advice of Steinbeck in
his Grapes of Wrath came too late to help Rasputin: "Repres-
sion works only to strengthen and knit the repressed."
"DREAMS OF RASPUTIN"
248
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i -*:.:#
A Portfolio of Lithographs on Crime and Violence 249
Cesar and Lucretia Borgia's public appearances were sub-
ject to the most rigorous protocol, always highly elegant, but
never lacking an element of surprise. One biographer notes that
Cesar always received his ambassadors while in a reclining
position or on horseback, never seated or standing. Lucretia
was never seen by her subordinates without her jewels, and
her formal audiences had the aura of theatrical productions
common to Hollywood in the 1930's.
Unfortunately, their moral standards were not subject to
the same discipline. The Borgia's castle was a devil's arsenal
floors and walls had false openings that led to suffocating dun-
geons; folding screens and brocade curtains hid spears and
darts. Unsuspecting victims were killed by lethal poisons con-
tained in rings, flowers, gloves and handkerchiefs.
Cuevas has drawn the Borgias with a light, mannerist ac-
cent. There is a touch of the medieval in the velvet costumes
and jewelry; the Borgias' expressions are cold and penetrating.
Ironically, Cesar with each hand makes the sigh of the jetta-
tori, which, in the anceint Italian culture, was thought to be
capable of warding off evil.
"BORGIA"
250
Report of the Task Force on Law and Law Enforcement
A Portfolio of Lithographs on Crime and Violence 251
Plutarch would not have objected to including in his Parallel
Lives the biographies of Jack the Ripper and the Boston Stran-
gler. The two had much in common: both carried out their
murders systematically; their victims were women; and in the
case of each victim there was evidence of sexual abuse. The
Boston Strangler was much less discriminating in that his vic-
tims were both young and old and belonged to no particular
class.
Jack the Ripper limited his victims to a specific type the
prostitutes whom he encountered during the night in London's
White Chapel district. Scotland Yard never discovered the iden-
tity of Jack the Ripper, but because of his skillful dismem-
berment of the bodies, it was conjectured that he might be a
medical student or perhaps a surgeon.
What similarities can be found between the lives of the two
men, who lived respectively in the London of the 1880's and
the Boston of this era, that might have contributed to the
development of such distorted and diseased minds? In both
cases it could have been a nightmarish childhood accentuated
by parental neglect and the tensions of the hostile center-city
environment.
'JACK THE RIPPER"
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A Portfolio of Lithographs on Crime and Violence 253
Whether in Mexico or elsewhere, Cuevas constantly makes
sketches which he later develops into finished drawings. A
critic has referred to his work as "a roving reporter's nota-
tions of visual images."
Following the tragic assassination of Robert Kennedy, Cuevas
commented he was fearfully reminded of the haunting simi-
larity of his own sketch books and the notebook of Sirhan
Sirhan.
Two self-portraits of the artist are drawn on the upper part
of the page. Here he again depicts himself as both the assassin
and the victim. Although the theme of the political assassina-
tion is suggested, a new element is introduced. The murderer
commits an act of vendetta; he believes his crime to be mor-
ally justified.
On the lower half of the print, Cuevas has drawn a sadistic
physician, who performs ghoulish experiments on his patients.
"FROM MY SKETCHBOOK"
254
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A Portfolio of Lithographs on Crime and Violence 255
Cuevas dispassionately depicts the scene moments following
a murder. The character at the left appears tortured and at
the same time aloof, almost melancholy. At his right, his victim
lies in a slumped position, dead from bullet wounds. The title
"L' Amour Fou" indicates that the murder was committed out
of jealous rage, so typical of many homicides.
Human emotions, Cuevas suggests, sometimes seem no longer
capable of being restrained when one confronts a crisis situa-
tion. Whether it be the case of a child who experiences hunger
and loneliness or an adult who feels humiliated or rejected,
violence is often the result.
The fear of punishment and the knowledge of the inherent
wrongness of violent acts too often are incapable of deterring
the expression of homicidal impulses. The tone of this print
seems to convey a sense of hopelessness in dealing with this
irrational aspect of man's nature.
"L'AMOUR FOU"
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A Portfolio of Lithographs on Crime and Violence 257
There has long been controversy over the interrelation be-
tween the creative processes of the mind and the destructive
or neurotic processes, which often seem to clash in the lives of
artists. Freud provided a new insight into this problem with
his interpretation of dreams and his study of Leonardo de Vinci,
relating sickness with creativity.
The life of Van Gogh (shown on the right) was an example of
this struggle. It contained a series of manic-depressive cycles,
in which he alternately experienced suicidal and homicidal
impulses separated by periods of love and compassion for his
fellow man. Shown here at the left is Gauguin, for whom he
had an obsessive hatred and a recurring desire to kill. . . . Van
Gogh's life and his work represent the existential conflict be-
tween a sense of futility which breeds self-destruction and hope
from which can evolve freedom.
"VAN GOGH'S CRIMINAL OBSESSIONS"
258
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A Portfolio of Lithographs on Crime and Violence 259
The modern-day prison is a flagrant anarchronism in the
midst of a so-called progressive society. The primary objective
of the penitentiary system is supposedly the rehabilitation of
the criminal with a view to his reintegration into society. But
far from accomplishing its objective, the system tends rather
to perpetuate and even reinforce the habits and attitudes of
criminals which were originally responsible for their incar-
ceration.
With the assistance of his brother, who is a psychiatrist,
Cuevas was permitted to visit Mexican prisons in 1954. His
drawings at that time reflect the "black period" of Goya. In
this lithograph it is evident that his memories of that experi-
ence are still vivid. The figure of the prisoner is distorted in
cubist volumes to provoke a monstrous image. His arms and
legs are useless stumps; his expression is one of strange pas-
sivity, lacking hope, expecting nothing.
"MAN IN JAIL"
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A Portfolio of Lithographs on Crime and Violence 261
Cuevas here portrays members of the family of organized
crime who ruthlessly derive their livelihood by exploitation
of human weaknesses. The group owes its subsistence to drug
traffic, prostitution, gambling and extortion.
There is a ghostlike quality to the figures shown in this
lithograph and an impression of an era of decades past sug-
gested by the spotted background and the characters' mode
of dress. It is almost as if one were looking at a photograh
of a lineup of members of a crime syndicate, perhaps taken in
Chicago during the 1920's or 1930's.
Cuevas' descriptive powers are strongly evident. On the right,
there is a young man with open jacket and striped pants pos-
ing an attitude of arrogance, toughness and hostility. His is
the role of the apprentice. The two "gentlemen" dressed in dark
suits are the intermediaries or "strong men" of the organization.
The "master mind" of the syndicate sits in a wheelchair; and
to his left indicated faintly with the number eight on his back
is the hired assassin.
The artist ends his series of lithographs on crime with the
seemingly indestructible element of organized crime which, like
the phenomenon of crime itself, survives society's manifold
attempts to stamp it out.
"WANTED"
PART THREE
THE AGENCIES OF LAW ENFORCEMENT
263
CHAPTER 13
THE NONSYSTEM OF CRIMINAL JUSTICE*
Despite broad agreement that crime is increasing faster than
the a unity 01 mosc cities to cope with it, deep division prevails
among those who prescribe anticrime remedies. Energy that
ought to be devoted to action programs to reduce crime is being
poured instead into words into an escalating conflict between
proponents of the hard line and of the soft line. Political cam-
paigns, legislative hearings and court arguments find intelligent
citizens taking all-or-nothing positions on such questions as : Are
law enforcement officers handcuffed or brutal? Should we sup-
port or reform the local police? Should prosecution policy be
tough or selective? Should prison sentences be long or flexible?
While to an informed observer the answers to such questions
are complex, a multitude of persons holding positions of auth-
ority or power behave as if they were simple. Instead of seeking
the very large common ground on which the hard line and the
soft line converge, law enforcement "experts" have shown an
increasing tendency to identify symbolic issues, such as Supreme
Court decisions, civilian review boards, capital punishment and
preventive detention, as if they held the keys to the crime prob-
lem.
The anger with which such issues have been debated in recent
years has contributed little to public confidence, to the safety
of streets or to the effectiveness of criminal procedures. It has,
however, caused actual reform in the institutions of public order
and justice to lag far behind the excellent recommendations of
three presidential crime commissions (National, D.C., and Civil
Disorders) which have reported since the end of 1966.
The chapters which follow contain discussions of some of the
reforms which need to be addressed promptly if the sad record
of the 1960's is to be bettered as law enforcement and criminal
justice face the challenge of the 1970's. As a backdrop for those
discussions, this chapter considers three questions:
*This chapter was prepared by Daniel J. Freed, Professor of Law and
Its Administration at Yale Law School and formerly Director of the Office
of Criminal Justice in the U.S. Department of Justice.
265
266 Report of the Task Force on Law and Law Enforcement
1. What does a typical criminal justice system look like
today?
3. How well is that system integrated into the program
of cities for meeting the problems of urban inadequacy ?
3. What new directions should comprehensive reform of
the criminal justice system take?
The responses set forth below sketch a profile of today's crim-
inal justice process and suggest some of the ingredients for its
improvement.
THE SYSTEM: THEORY VS. PRACTICE
Our society has commissioned its police to patrol the streets,
prevent crime, arrest suspected criminals, and "enforce the law."
It has established courts to conduct trials of accused offenders,
sentence those who are found guilty and "do justice." It has cre-
ated a correctional process consisting of prisons to punish con-
victed persons and programs to rehabilitate and supervise them
so that they might become useful citizens.
It is commonly assumed that these three components law
enforcement (police, sheriffs, marshals), the judicial process
(judges, prosecutors, defense lawyers) and corrections (prison
officials, probation and parole officers) add up to a "system"
of criminal justice. The system, however, is a myth.
A system implies some unity of purpose and organized interre-
lationship among component parts. In the typical American
city and state, and under federal jurisdiction as well, no such re-
lationship exists. There is, instead, a reasonably well-defined
criminal process, a continuum through which each accused
offender may pass: from the hands of the police, to the jurisdic-
tion of the courts, behind the walls of a prison, then back onto
the street. The inefficiency, fallout, and failure of purpose during
this process is notorious.
The dismal crime control record to date is well known. Accord-
ing to the 1967 report of the President's Commission on Law En-
forcement and Administration of Justice, well over half of all
crimes are never reported to the police. Of those which are, fewer
than one-quarter are cleared by arrest. Nearly half of all arrests
result in the dismissal of charges. Of the balance, well over 90
percent are resolved by a plea of guilty. The proportion of cases
which actually go to trial is tiny, representing less than 1 percent
of all crimes committed. A large portion of those convicted are
sentenced to jails or penal institutions; the balance are released
under probation supervision.
Nearly everyone who goes to prison is eventually released,
often under parole supervision. Between two-fifths and two-thirds
of all releasees are sooner or later arrested and convicted again,
The Nonsystem of Criminal Justice 267
thereby joining the population of repeater criminals we call re-
cidivists.
Nearly every official and agency participating in the criminal
process is frustrated by some aspect of its ineffectiveness, its
unfairness or both. At the same time, nearly every participant
group itself is the target of criticism by others in the process.
Upon reflection, this turmoil is not surprising. Each partici-
pant sees the commission of crime and the procedures of justice
from a different perspective. His daily experience and his set of
values as to what effectiveness requires and what fairness re-
quires are therefore likely to be different. As a result, the mission
and priorities of a system of criminal justice will in all likeli-
hood be defined differently by a policeman, a trial judge, a prose-
cutor, a defense attorney, a correctional administrator, an appel-
late tribunal, a slum dweller and a resident of the suburbs.
For example : The police see crime in the raw. They are exposed
firsthand to the agony of victims, the danger of streets, the vio-
lence of lawbreakers. A major task of the police officer is to track
down and arrest persons who have committed serious crimes. It
is often discouraging for such an officer to see courts promptly
release defendants on bail, or prosecutors reduce charges in order
to induce pleas of guilty to lesser offenses, or judges exclude in-
criminating evidence, or parole officers accept supervision of re-
leased prisoners but check on them only a few minutes each
month.
Yet the police themselves are often seen by others as contribut-
ing to the failure of the system. They are the target of charges of
ineptness, discourtesy, brutality, sleeping on duty, illegal
searches. They are increasingly attacked by large segments of the
community as being insensitive to the feelings and needs of the
citizens they are employed to serve.
Trial judges tend to see crime from a more remote and neutral
position. They see facts in dispute and two side to each issue.
They may sit long hours on the bench in an effort to adjudicate
cases with dignity and dispatch, only to find counsel unprepared,
or weak cases presented, or witnesses missing, or warrants un-
served, or bail restrictions unenforced. They find sentencing to
be the most difficult of their tasks, yet presentence information
is scanty and dispositional alternatives are all too often thwarted
by the unavailability of adequate facilities.
Yet criminal courts themselves are often poorly managed and
severely criticized. They are seriously backlogged. All too many
judges are perceived as being inconsiderate of waiting parties,
police officers and citizen witnesses. Throughout the country,
lower criminal courts tend to be operated more like turnstiles
than tribunals.
268 Report of the Task Force on Law and Law Enforcement
Corrections officials enter the crime picture long after the
offense and deal only with defendants. Their job is to maintain
secure custody and design programs which prepare individual
prisoners for a successful return to society. They are discouraged
when they encouter convicted persons whose sentences are
either inadequate or excessive. They are frustrated by legislatures
which curtail the flexibility of sentences and which fail to appro-
priate necessary funds. They are dismayed at police officers who
harass parolees, or at a community which fails to provide jobs or
refuses to build halfway houses for ex-offenders.
Yet jails are notoriously ill-managed. Sadistic guards are not
uncommon. Homosexual assaults among inmates are widely
tolerated. Prison work usually bears little relationship to em-
ployment opportunities outside. Persons jailed to await trial
are typically treated worse than sentenced offenders. Correc-
tional administrators are often said to be presiding over schools
in crime.
In the mosaic of discontent which pervades the criminal pro-
cess, public officials and institutions, bound together with private
persons in the cause of reducing crime, each sees his own
special mission being undercut by the cross-purpose, frailties
or malfunctions of others. As they find their places along the
spectrum between the intense concern with victims at one end,
and total preoccupation with reforming convicted lawbreakers at
the other, so do they find their daily perceptions of justice vary-
ing or in conflict. The conflicts in turn are intensified by the
fact that each part of the criminal process in most cities is over-
loaded and undermanned, and most of its personnel underpaid
and inadequately trained.
Under such circumstances it is hardly surprising to find
in most cities not a smooth functioning "system" of criminal
justice but a fragmented and often hostile amalgamation of crim-
inal justice agencies. To the extent they are concerned about
other parts of the "system," police view courts as the enemy.
Judges often find law enforcement officers themselves violating
the law. Both see correctional programs as largely a failure. Many
defendants perceive all three as paying only lip service to indi-
vidual rights.
Mechanisms for introducing some sense of harmony into the
system are seldom utilized. Judges, police administrators and
prison officials hardly ever confer on common problems. Senten-
cing institutes and familiarization prison visits for judges are the
exception rather than the rule. Neither prosecuting nor defense
attorneys receive training in corrections upon which to base in-
telligent sentencing recommendations.
The Nonsystem of Criminal Justice 269
Nearly every part of the criminal process is run with public
funds by persons employed as officers of justice to serve the same
community. Yet every agency in the criminal process in a sense
competes with every other in the quest for tax dollars. Isolation
or antagonism rather than mutual support tends to characterize
their interwined operations. And even when cooperative efforts
develop, the press usually features the friction, and often aggra-
vates it.
One might expect the field to be flooded with systems analysts,
management consultants and publicly-imposed measures of or-
ganization and administration in order to introduce order and
coordination into this criminal justice chaos. It is not.
A recognized profession of criminal justice system administra-
tors does not exist today. In fact, most of the subsystems are
poorly run. For example, court administrators are rare, and
court management by trained professionals is a concept that is
taking hold very slowly.
The bail "system," which should involve coordination among
at least a half dozen agencies, is presided over by no one. Few
cities have neutral bail agencies to furnish bail-setting magis-
trates with reliable background data on defendants. Prosecutors
usually ignore community ties and factors other than the
criminal charge and the accused's criminal record in recommend-
ing bail. Defense lawyers rarely explore nonmonetary release
conditions in cases involving impecunious clients. Detention re-
ports on persons held long periods in jail prior to trial are rarely
acted on by courts, and bail review for detainees is rarely re-
quested. Enforcement of bail restrictions and forfeitures of bond
for bailjumpers are unusual. Bail bondsmen go unregulated.
Effective police administration is hard to find. The great
majority of police agencies are headed by chiefs who started as
patrolmen and rose through the ranks, whose higher education is
scanty, whose training in modern management techniques,
finance, personnel, communications and community relations is
limited, and whose isolation is profound. Lateral entry of police
administrators from other departments or outside sources is
usually prohibited by antiquated Civil Service concepts.
Apart from lack of leadership, the process of crime control
in most cities has no central collection and analysis of criminal
justice information. It has no focal point for formulating a
cohesive crime budget based on system needs rather than indi-
vidual agency requests. It has no mechanism for planning, initia-
ting or evaluating systemwide programs, or for setting priorities.
It has no specialized staff to keep the mayor or other head of
government regularly informed of the problems and progress
of public safety and justice. Crime receives high-level attention
270 Report of the Task Force on Law and Law Enforcement
only as a short-term reaction to crisis. An effective system does
not exist.
This bleak picture should not obscure occasional bright spots.
Within recent years, scattered about the country, some promising
developments have appeared : innovations have been introduced,
new leadership has emerged, modern facilities have been built, a
systems approach has been tried. While the impact has been
small, hopes have been raised. States here and cities there have
shown that crime control and justice can be improved. The ques-
tion is whether isolated reforms can grow into a pattern.
CRIMINAL SANCTIONS AS A SOLUTION TO
URBAN PROBLEMS
The internal disorganization of the criminal justice system is
not its only handicap. Even if it functioned like a well-oiled ma-
chine, it would without other changes probably fail to achieve
either a substantial reduction in most categories of conduct now
labelled as crime, or a material increase in public respect for law.
The liklihood of failure is promoted by two traditional fea-
tures of criminal law administration: (1) the criminal sanction
applies by statute to much more human behavior than it can
realistically control, and (2) the criminal process operates too
largely in isolation from other programs aimed at the breeding
grounds of antisocial behavior. Until the target conduct of crim-
inal penalties can be narrowed and the myth of full enforcement
dispelled, and until crime reduction is perceived as requiring
better education, housing, health and employment opportunities
for would-be offenders, the criminal process will continue to
suffer from demands that it accomplish more than is possible
with less help than is indispensable to success.
SCOPE OF SANCTIONS
The case for limiting the use of the criminal sanction has
been advanced most effectively by Professor Sanford Radish in
his Annals article on The Crisis of Overcriminalization (1967)
and by Professor Herbert L. Packer in The Limits of The Crim-
inal Sanction (1968). For present purposes, their relevant point
is that the demands made upon the police, the courts and the
penal process, far exceed the capacity of these organizations col-
lectively to investigate, apprehend, prosecute, adjudicate and cor-
rect individual behavior.
The overload means that full enforcement, speedy trial, fair
procedure and effective sentencing have become slogans rather
than facts. The crimes of violence society fears most murder,
forcible rape, robbery, assault are currently processed through
many of the same channels as conduct which injures third parties
The Nonsystem of Criminal Justice 271
least, e.g., prostitution, homosexuality, intoxication, gambling,
marijuana use, vagrancy, and other minor offenses. The disabling
impact on law enforcement is suggested by the fact that the
police are overloaded with minor cases at a time when their
clearance rate for serious crimes in virtually every city is less
than 25 percent.
Without condoning conduct which offends prevailing moral
standards, a community could undoubtedly act more expeditiously
and effectively against violent invasions of person and property
if fewer of its law enforcement resources were detoured into
crime objectives of low priority. Finding alternative ways of
handling low priority offenses would make particular sense in
the case of conduct which is extremely difficult to detect (because
it occurs voluntarily and often inside private homes), produces
no injury to another person, and offers little likelihood of deter-
rence or cure even if criminal penalties are imposed. The spor-
adic and discriminatory enforcement, the charges of abuse of
police discretion, the assembly-line justice and the ineffective
sanctions which characterize most of the present effort to deal
with these lesser offenses tends to perpetuate cynicism and dis-
respect for law.
The search for nonpenal techniques to control behavior involv-
ing consenting parties should be viewed not as a soft approach to
lesser offenses, but as a realistic route to meaningful sanctions
against crimes that injure society the most. Some forms of
conduct should probably be eliminated entirely from regulation
by statute. Some, like intoxication, should be dealt with through
voluntary health reforms, such as those being pioneered by the
Manhattan Bowery Project. Others, like traffic infractions, might
be transferred to an administrative or regulatory process, as
California and New York have done. But until the wide range
of behavior now subject to arrest, trial and sentencing is materi-
ally reduced, the police, courts and prisons are likely to remain
overwhelmed and underachieving.
RELATIONSHIP TO CIVIL PROGRAMS
Just as the conduct amenable to criminal sanctions needs to be
narrowed, so should the range of community-based programs tied
to the criminal process be broadened. Education, jolp training,
medical care and shelter are needed at least as much by juven-
iles and adults charged with crime as by their counterparts in
the deprived community who have not been so charged. The
criminal justice process cannot continue to function in isolation
from the more affirmative social programs for improving indi-
vidual lives. The objective of integrating criminal and noncrim-
inal programs is easy to advocate but difficult to achieve.
272 Report of the Task Force on Law and Law Enforcement
For example, a major goal of an offender's contact with the
criminal process is said to be corrective rehabilitation followed
by reintegration into the community, with enhanced respect for
law. Yet the opposite is often true : the typical prison experience
is degrading, conviction records create a lasting stigma, decent
job opportunities upon release are rare, voting rights are
abridged, military service options are curtailed, family life dis-
ruptions are likely to be serious, and the outlook of most ex-con-
victs is bleak. The expectation of the community that released
offenders will be "corrected" is matched by outdated laws and
community responses which tend strongly to defeat those expec-
tations.
This unfortunate pattern is not confined to the handling of
convicted offenders. The odds are high that unconvicted per-
sons will encounter similar, and sometimes greater, constraints.
Cities are full of people who have been arrested but not con-
victed, and who nevertheless served time in jail and were
stigmatized in other seriously disabling ways.
Thus, local facilities in which arrested persons are detained
prior to conviction are typically worse, in terms of overcrowd-
ing and deterioration, than the prisons to which convicted
offenders are sentenced. Accused first offenders are mixed indis-
criminately with hardened recidivists. The opportunities for
recreation, job training or treatment of a nonpunitive character
are almost nil.
If released, a person's arrest record alone becomes a sub-
stantial liability. In many segments of a community, the dif-
ference between arrest status and that of conviction is indis-
criminately regarded as a technicality.
In its present state of disrepair, the criminal process when
it operates alone at best performs a holding function. This
function may provide society respite when a serious offender
with a long record and minimal prospect of improvement is
identified. In such cases, denial of release for as long as the law
allows may seem reasonable, even though almost all convicts
are eventually released.
In nearly every case, however, a city candid about its own
criminal justice deficiencies needs to ask whether full enforce-
ment aimed at detention, prosecution and imprisonment, will
in the long run reduce or reinforce criminality.
The traditional assumption has been that punishment will
reduce crime. In attempting to separate myth from reality,
however, it is worth noting that experienced judges have re-
sorted increasingly in recent years to various forms of post-
conviction probation. They have done so after weighing the
possibilities for rehabilitation if the offender is so released
The Nonsystem of Criminal Justice 273
against the usually disastrous prognosis which would accom-
pany his incarceration. It is a painful choice, little understood
by the public. But the decision to seek correction of an offender
in the community reflects less a compassionate attitude toward
law-breakers, more a hardheaded recognition, based on data,
that long-term public safety has a better chance of being pro-
tected.
The alternatives are no longer simply prison or outright re-
lease. Integrating the criminal process with community pro-
grams requires closely supervised forms of release: daytime
work release, release in the custody of reliable counselors, pre-
release guidance centers, alcoholism and narcotic treatment
centers, halfway houses.
Community-based programs will, of course, fail equally with
prisons if the resources and attitudes which accompany them
are no better. Identifying the offender's needs in terms of edu-
cation, job training, employment, family aid, hospitalization
and shelter, and providing for them, must be seen as inuring
to society's benefit as well as his own.
The stage at which these services are furnished should when-
ever possible be advanced from after conviction to after arrest.
Voluntary correctional programs should be offered without a
prior finding of guilt. As urged by the National Crime Commis-
sion, accused offenders should be routed away from the criminal
process at the earliest stage that vindication of the community's
interest permits.
Most such efforts will tend to reduce the cost of criminal
prosecution by eliminating it when it is not needed, and to
increase the speed and firmness of prosecution for hardened
offenders for whom no meaningful alternative exists. Public
funds thus diverted from the revolving door functions of im-
prisonment, warehousing, degradation and contamination can
be invested instead in community programs where the crime
reduction payoff is higher.
GUIDELINES FOR CRIMINAL JUSTICE REFORM
Against this background of the criminal justice nonsystem,
and unrealistic expectations as to what its sanctions can
achieve, emerged the 1967 Report of the President's Commis-
sion on Law Enforcement and Administration of Justice and the
1968 Omnibus Crime Control and Safe Streets Act. In theory,
the 1968 legislation provided the framework and the funds for
massive federal grants to the states with which the compre-
hensive and detailed recommendations of the President's Com-
mission could be implemented. In fact, early performance has
been handicapped by unrealistic deadlines, inadequate funds
274 Report of the Task Force on Law and Law Enforcement
and a shortage of experienced manpower to convey a criminal
justice system approach to the states.
During the first year since its launching, the federal pro-
gram to assist states and cities in dealing with crime has come
under attack from several sources, e.g., the Conference of May-
ors, the National League of Cities, the National Urban Coalition.
Instead of emphasizing federal leadership to guide the develop-
ment of sound criminal justice systems at the local level, as
originally proposed by the President's Commission, the Act
has assigned the leadership role in distributing block grants
and guiding their application to the states. State planning
groups have failed in many instances to represent the full
range of citizen as well as official interests in crime control.
Friction has erupted between cities and their state govern-
ments over the question whether funds should be allocated on
the basis of population or crime rate. Agencies of the criminal
process have tended to plan their own individual programs by
themselves. Crime control has continued to remain isolated
from social programs aimed at employment, education, housing
and health. Outside expertise to augment local planners has
remained scarce. The consequence, in many instances, has been
pedestrian state plans.
Unless some new ingredients are added, deficiencies such as
these foreshadow the channeling of massive federal funds into
old programs, and into higher salaries for old-line personnel.
They will thereby tend to reinforce rather than reform the
inadequate criminal justice institutions and to perpetuate the
polarized attitudes which exist today.
There are, of course, no short cuts to the reduction of crime.
More money and personnel, new equipment and revised pro-
cedures will all be essential to the goal. Yet without new or-
ganizations and relationships to help spend money wisely and
use personnel well, history suggests that significant changes
are unlikely.
Reform in the criminal field has a long record of excellent
recommendations never carried out. A substantial portion of
the National Crime Commission's proposals in 1967 are, for ex-
ample, remarkably similar to those urged by the Wickersham
Commission established by President Hoover 37 years earlier.
Despite that Commission's equally impressive documentation,
conservatism and presidential prestige, little follow-through
was mounted. Experience with commissions at the state and
local levels shows similar results. Library shelves are crowded
with reports on police inadequacy, court chaos and prison dis-
grace, and reform proposals which never produced effective
action.
The Nonsystem of Criminal Justice 275
Moreover, money poured into the crime problem does not
by itself buy crime reduction. Wealthy states and localities
which have spent vast sums for crime control have become no
more noticeably crime-free than jurisdictions which haven't.
The District of Columbia, with a superb crime commission re-
port, constant oversight by Congress and federal money close
by has failed to achieve anything resembling what two Presi-
dents have called a model system of criminal justice.
This pattern suggests the existence of substantial built-in
obstacles to change. It suggests that unless much more atten-
tion is spotlighted on the inability and unwillingness of present
crime control systems to effectuate reform, new money may
go down old drains. Vexing problems of politics, organization
and leadership underlie the maintenance of the status quo and
need to be faced up to directly.
In the search for new approaches to the implementation of
crime commission recommendations, two promising but com-
paratively untried strategies have been suggested by recent
experience on the frontiers of criminal justice in several cities:
(1) a program to coordinate public criminal justice agencies
more effectively, and to link them to companion social programs,
by placing them under the supervision of a new high-level crim-
inal justice staff or agency; and (2) a program to develop private
citizen participation as an integral operating component, rather
than a conversational adjunct, of criminal reform. The success
of citizen participation will in many ways be dependent on the
establishment of a central criminal justice office.
THE CRIMINAL JUSTICE AGENCY
The pervasive fragmentation of police, court and correc-
tional agencies suggests that some catalyst is needed to bring
them together. An assumption that public agencies will operate
consistently can no longer suffice as a substitute for deliberate
action to make it happen in real life. Arrested offenders the
common target or client of criminal justice agencies afford
their only continuous link today.
Periodic crime commissions which study these agencies, file
reports and then disappear are valuable, but they are too
transient for the catalyst role. A law enforcement council
consisting of chief judges and agency heads who meet periodi-
cally will likely constitute little more than another committee
of overcommitted officials.
A full-time criminal justice office should be considered basic
to the formation of a criminal justice system. Its optimum form
and its location in the bureaucracy need to be developed through
experimentation.
276 Report of the Task Force on Law and Law Enforcement
The function could be vested in a criminal justice assistant to
the mayor or county executive, with staff relationships to execu-
tive agencies, and liaison with the courts, the bar and the com-
munity. Or it could be established as a new agency, a ministry
of justice, possessing authority under the direction of a high
ranking official of local government (e.g., Director of Public
Safety or Criminal Justice Administrator) to oversee and co-
ordinate the police, prosecutorial and correctional functions. Spe-
cial kinds of administrative ties to the courts and the public de-
fender office would have to be evolved to avoid undermining the
essential independence of the judiciary and the adversary role of
the defense.
The establishment of a new office or agency should not be per-
mitted to disparage or overwhelm the diversity of values and
perspectives which are essential to preserve in the separate
agencies of a criminal justice system. Otherwise, a single official
oriented too heavily toward law enforcement or toward indi-
vidual rights might seriously disturb the balance of an entire
system. The appointment of a carefully representative criminal
justice advisory council, composed of key public officials and
knowledgeable private citizens can help guard against this danger
as well as promote the broad interests of reform.
Whatever the form of the new agency, its basic purposes would
be to allocate resources, to introduce innovation within as well as
among the constituent agencies so as to improve the fair and
effective processing of cases and to develop understanding and
respect among the component parts of the system. For example :
It would develop a system of budgeting for crime which
takes account of the interrelated needs and imbalances
among individual agencies and jurisdictions;
It would initiate a criminal justice information system
which, as an adjunct to personnel, budgeting and legisla-
tive decisions, would embrace not simply crime reports (as
is typical today), but arrests, reduction of charges, con-
victions, sentences, recidivism, court backlogs, detention
populations, crime prevention measures, and other data
essential to an informed process ;
It would perform a mediating and liaison role in respect
to the many overlap functions of the criminal process,
e.g., development of programs to reduce police waiting
time in court, to improve pretrial release information and
control, to enlist prosecutors and defense attorneys in co-
operative efforts to expedite trials, to bring correctional
inputs to bear on initial decisions whether to prosecute,
to improve relations between criminal justice agencies and
the community ;
The Nonsystem of Criminal Justice 277
It would perform or sponsor systems analyses and pe-
riodic evaluations of agency programs, and encourage in-
novations and pilot projects which might not otherwise
have a chance in a tradition-oriented system ;
It would develop minimum standards of performance,
new incentives and exchange programs for police, court
and correctional personnel.
Most of all, the comprehensive grasp of the system by an
experienced criminal justice staff would facilitate informed
executive, judicial and legislative judgments on priorities. It
would enable wise planning and action by the city with funds re-
ceived from the Law Enforcement Assistance Administration
and the state. It would help decide, for example, whether the new
budget should cover :
A modern diagnostic and detention center to replace the
jail, or 1000 policemen;
Additional judges and prosecutors, or a prior manage-
ment survey of the courts ;
A computerized information system or a roving leader
program for juveniles ;
New courtrooms or a half-dozen halfway houses.
For a full-time well-staffed criminal justice office to be suc-
cessful, it must achieve a balanced perspective within its own
ranks on the problems of public safety and justice. Practical
experience in law enforcement, in the assertion of individual
rights, and in the efficiency and effectiveness of programs must
be represented in the staff as well as in the advisory council.
The transition from today's chaotic process to a well-run
system will not be easy. Most troublesome is the fact that the
criminal process does not operate within neat political bounda-
ries. Police departments are often funded at the city level;
county and state police and sheriffs must also be taken into
account. Judges are sometimes appointed, sometimes elected,
and different courts are answerable to local, county and state
constituencies. Correctional functions are a conglomerate of
local and county jails, and county and state prisons. Probation
systems are sometimes administered by the courts, sometimes
by an executive agency. Prosecutors may be appointed or
elected, from all three levels of government. Defense lawyers
usually come from the private sector but are increasingly being
augmented by public defender agencies.
Reform will be difficult even within a single jurisdiction,
where political control of criminal justice agencies is tradi-
tionally loose. Many mayors have difficulty with the concept of
the police department as a subordinate agency. "Keep the poli-
278 Report of the Task Force on Law and Law Enforcement
tics out of policing" has become a watchword often used by
inbred police departments to resist the recruitment of new
leadership from outside police civil service rosters. By defer-
ing more to police chiefs than to the heads of other critical
city agencies, mayors avoid making crime their own problem.
At the same time, the police themselves have avoided responsi-
bility for crime control, especially in recent years, by attribut-
ing the increase in crime to Supreme Court decisions.
If this confusing pattern makes the creation, location, staffing
and political viability of a criminal justice office difficult, it
also symbolizes why little semblance of a system exists today.
Fragmentation is in many ways inherent in the antiquated
structure of local government. The challenge of crime poses a
high priority inducement to reallocate political power and make
government more effective.
An adequately staffed criminal justice office will be more
than most cities can currently afford. Its need is not presently
seen as high on their priority lists. To encourage the develop-
ment of such offices, the Violence Commission should recommend
the enactment of federal legislation to provide direct financial
aid to cities or counties submitting suitable plans for struc-
turing and staffing them. Caution will have to be exercised
to avoid funding new operations which are systemwide in
appearance but prosecutorial in purpose. Some commitment
should be required to assure the recruitment of a balanced staff.
The applicant's plan should also spell out in detail the contem-
plated relationship between the proposed office and the rele-
vant governmental structure of the city, county and state.
Helpful insights in establishing such offices may be derived
from the experience of state law enforcement planning agen-
cies established under the Omnibus Crime Conrtol and Safe
Streets Act. Useful precedents may also be found in the crimi-
nal justice coordinating role developed by Mayor Lindsay's office
in New York over the past 2 years and now being explored by
several other cities, and in the experience of the Office of
Criminal Justice established in the Department of Justice in
1964 by Attorney General Kennedy, and initially directed by
Professor James Vorenberg of Harvard.
PRIVATE CITIZEN INVOLVEMENT
Government programs for the control of crime are unlikely
to succeed all alone. Informed private citizens, playing a vari-
ety of roles, can make a decisive difference in the prevention,
detection and prosecution of crime, the fair administration of
justice, and the restoration of offenders to the community.
Each function is being grossly underplayed today. New citi-
The Nonsystem of Criminal Justice 279
zen-based mechanisms are needed at the national and local
levels to spearhead greater participation by individuals and in
groups.
NATIONAL CRIMINAL JUSTICE CONSULTING CENTER
Enlisting all segments of business and citizen life in con-
structive crime programs is no easy task. The Federal govern-
ment has not done it. No existing private organization appears
to combine enough prestige, knowledge and experience. To serve
as a catalyst, a national citizen group must know the crime
problem intimately and broadly, have practical insights into
its complex solutions and possess a stake in the outcome.
At least four groups in recent years have developed such a
background and achieved the desired visibility: the Miller Com-
mission (President's Commission on Crime in the District of
Columbia), the Katzenbach Commission (President's Commis-
sion on Law Enforcement and Administration of Justice), the
Kerner Commission (National Advisory Commission on Civil Dis-
orders), and the Eisenhower Commission (National Commission
on the Causes and Prevention of Violence). Each had a dis-
tinguished, bipartisan and largely non-federal membership, con-
taining liberals and conservatives.
Each of the three which have completed their tasks has
seen a diverse membership combine to produce a compelling
report and sweeping recommendations. To a remarkable degree,
their findings and directions for the future are the same, or
fall into a consistent pattern. At the same time, most of their
proDosals have gone unimplemented.
To capitalize on the work of its predecessors, and profit,
from the lessons of inadequate follow-through, the Violence
Commission has a notable opportunity to go beyond the writing
of its final report and the closing of its doors. It can, if it will,
take the initiative in creating an ongoing mechanism to pro-
mote nationwide the kinds of criminal justice systems toward
which it and its staff have been writing.
Specifically, the Violence Commission should convene a session
to which its predecessor commissions and their executive staffs
are invited. The Brown Commission (National Commission on
Reform of Federal Criminal Laws), whose important work on
overhauling criminal statutes is still in process, should also be
invited. The Violence Commission should lay before this expert
group a proposal to establish a new national organization, per-
haps known as the National Criminal Justice Consulting Center.
The proposal should include the following ingredients :
A Board of Directors composed of three representatives
280 Report of the Task Force on Law and Law Enforcement
from each of the Presidential Commissions, including their
executive directors ;
A full-time staff, with generous allowance for consult-
ants, recruited from among staff members of each com-
mission, staff leaders of state and local law enforcement
planning agencies established pursuant to the Omnibus
Crime Control and Safe Streets Act of 1968, persons with
experience in the Law Enforcement Assistance Administra-
tion (LEAA) and related federal agencies, and persons with
backgrounds in the work of criminal justice institutes such
as those pioneered in recent years by the Ford Foundation;
Financial assistance sought from a combination of pri-
vate and public sources, e.g., business, foundations, LEAA
and other federal agencies ;
Close working arrangements with national organizations
which specialize in important parts of criminal justice
systems reform, e.ir., International Association of Chiefs of
Police, American Bar Association, American Corrpctional
Association, National Council on Crime and Delinquency, Na-
tional District Attorneys Association, National Legal Aid
and Defender Association, American Civil Liberties Union.
The proposed NCJCC would assist localities in working out
the details of specific reforms which cut across the operating
lines of criminal justice agencies. It would be a how-to-do-it
consultant, helping cities implement reforms rather than con-
fining itself to drafting plans. It would serve as a catalyst
and clearinghouse, bringing innovations developed in one city
to the attention of persons working on the same problem in
another. It would furnish proven budgets, job descriptions,
court rules, legislation, and operating know-how. It would
cross-fertiH/e new approaches, aid public education whore anti-
quated notions prevail, and offer workable answers to the per-
sistent citizen question what can I do to help ?
Such an organization could fill the national leadership void
created whenever a prestigious and educated commission, which
over time has developed consensus out of diversity, dissolves
and disperses.
By being private in composition, the NCJCC would avoid
the strictures against Federal control of state programs by which
Congress narrowed the LEAA leadership role when it enacted
the Omnibus Crime Control Act of 1968. While NCJCC's guid-
ance would be unofficial, the collective experience it represented
would substantially assist those in Federal, state and local gov-
ernment who vitally need expert support in their difficult tasks.
As an adjunct to its consulting mission, the Center might
also undertake national demonstrations. As local innovations
The Nonsystem of Criminal Justice 281
in crime control are identified, the Center on its own or with
others could bring them to the attention of a nationwide audi-
ence through periodic conferences.
At least twice in recent years, through the initiative of pri-
vate nonprofit organizations, national conferences have been
convened to demonstrate the details of useful criminal reforms.
In each case, a how-to-do-it approach was mounted to show
how different communities had addressed a common problem
and produced improvements in the criminal process. The Na-
tional Conference on Bail and Criminal Justice was cospon-
sored in 1964 by the Vera Institute of Justice and the U.S.
Department of Justice. The National Defender Conference in
1969 was undertaken by the National Dpfender Project of the
National Legal Aid and Defender Association, with cosponsorship
by the American and National Bar Associations, the Department
of Justice and others.
There are many artisans in the campaign for leadership
and funds with which to control a national citizen effort to
improve criminal justice. Yet no organization represents or
could attract the reputation and experience which has evolved
from the Presidential commissions of recent years. They pro-
vide a resource which ought not be permitted to evaporate.
LOCAL CITIZEN ORGANIZATIONS
Constructive citizen action on the local level can be a power-
ful force for criminal justice reform. There are simply too many
important aspects of the private citizen's duty to expect local
government to solve the crime problem by itself.
The private role begins with each citizen responding indi-
vidually when called: reporting crime, appearing as a witness,
serving as a juror, hiring the ex-offender. The prevailing low
level of performance in most of these areas is exemplified by
the finding of the President's Commission on Law Enforce-
ment and Administration of Justice that more than half of all
crimes are never reported; by the widespread refusal of citi-
zens to "become involved"; by the frequent failures of victims
to prosecute, or to continue to show up in court despite seem-
ingly endless court delays; and by the rampant refusal of em-
ployers, public and private, to employ persons with criminal
records.
Beyond individual action the private role requires group
participation. By and large, citizens fearful of crime are unin-
formed about the problems of criminal justice administration.
They are too often unread in the literature of crime commis-
sions, uninvolved in efforts to improve the system, and over-
282 Report of the Task Force on Law and Law Enforcement
loaded with myths and scapegoats. All too many citizens con-
tinue to advocate simple solutions to complex crime problems.
Those who dig deeply almost always change their minds.
The myths can be erased but only by firsthand involvement in
the Drocess of reform. New York City has established a Criminal
Justice Coordinating Council to tie private business, labor, edu-
cation, religion and other citizen interests to public officials
in tackling specific crime control projects. In narcotics, alco-
holism, burglary prevention, court delay, police manpower util-
ization, offender employment and other areas, teams of public
and private persons aided by full-time private staff from the
Vera Institute of Justice) work together, analyzing the facts,
planning for change, and overseeing reform. The coordinating
council idea is catching on elsewhere.
Royal Oak, Mich., and Denver, Colo., have seen groups of pri-
vate citizens develop one to one programs through which a
private person helps a misdemeanor offender or a juvenile de-
linquent make his way back into law abiding community life.
Washington, B.C., has produced Bonabond, Inc. an orga-
nization run by ex-offenders to help other ex-offenders in trouble.
In a host of cities, local chapters of national organizations
like the Lawyers Committee for Civil Rights Under Law, the Ur-
ban League, the Urban Coalition, the National Council on Crime
and Delinquency, the League of Women Voters, and the Ameri-
can Friends Service Committee, have launched programs to im-
prove jails and prisons, juvenile courts, offender employment,
police recruitment and crime prevention, plan emergency jus-
tice procedures, etc.
As such local efforts multiply, several elements critical to
their success or failure, and their overall impact on law and
justice in the community, emerge: e.g. full-time staffing, ade-
quate funding, long-term continuity, involvement in a spectrum
of criminal justice system problems, frequent evaluation of
progress.
Perhaps the most successful of private organizations in at-
tacking a broad range of crime control problems through a
public-private partnership is New York City's Vera Institute
of Justice. Its unique role in cooperation with the office of the
Mayor, the police, the courts and corrections has developed
over eight years. Its nonbureaucratic approach has permitted
it to test new programs, through experiments and pilot proj-
ects, in a way no public agency would likely find successful.
Its core funding is entirely private; its individual project fi-
nancing comes from a wide range of Federal, state and pri-
vate sources.
The philosophy and technique which characterize the Vera
The Nonsystem of Criminal Justice 283
operation have been summarized by its Director, Herbert J.
Sturz :
It has often been said that public institutions are in-
herently resistent to change particularly to change pro-
posed by a private outside organization. Vera has not found
this to be the case in New York City. We received sup-
port from Mayor Wagner when we began the Manhattan
Bail Project. We have had support from Mayor Lindsay
for our more recent projects. The agencies with which we
have dealt have acknowledged the need for change, and
they have been, for the most part, hospitable to new ideas
and, to some extent, experimentation.
Many irritants in the system arise from the lack of coor-
dination among agencies. The principal mechanisms for
dealing with a problem which cuts across agency lines
the interdepartmental committee and the task force have
been largely unsuccessful. A neutral private agency, such as
Vera, can successfully bring together several agencies in a
joint innovative program or experiment. Perhaps because
we are not part of the bureaucratic machinery, we post
little threat to existing agencies and carry with us no
residue of past misunderstandings. Also, bringing about the
required cooperation is our business and not an extra duty
imposed on a crowded schedule.
In addition, Vera can intercede with the city's power
structure; we are not bound by chains of command. We do
not seek reform by exposing inefficiency or injustice, by
leveling indictments, or by public confrontation with line
agencies. Too often, this approach hardens opposition to
change or at best leaves the kind and quality of change
to the agency under attack. And we have found that, al-
though preliminary fact-finding is necessary as a prelude
to experimentation, a study alone is seldom effective in
bringing about change. In the criminal process Vera has
used the pilot project to advantage.
Small test programs can usually be mounted inexpen-
sively; specialists can be brought in ad hoc; red tape can
be bypassed; relatively quick results can be expected.
Since no new agency, bureau, or division is created, a
project can be easily dismantled if it proves ineffective,
without disastrous results politically or financially, and
even in failure it may provide useful information. If the
project proves worthwhile, the city can take it on as a
permanent fixture, and the private planning group can
move on to a new area.
It is my belief that this action-oriented intervention
284 Report of the Task Force on Law and Law Enforcement
approach, which Vera has tried with some success in New
York City, can be useful in other cities provided that cer-
tain conditions can be met. Among them are: (1) that fund-
ing, at least for a core staff, be available over a two or
three year period from the private sector (money for spe-
cific projects can be raised from city, state and federal
sources) ; (2) that the new institute be system-oriented
as well as client-oriented and should quickly establish in
the community the principle that the two are not mutually
exclusive; (3) that the first couple of projects show visible
results within a year; (4) that the people who run the
institute are content to stay in the background and give
credit to those within the system.
The Vera experience should be tried elsewhere. The Federal
government should join the private sources to provide the
funds for spurring the establishment of similar institutes in
other urban centers. A major task of the proposed NCJCC should
be to help localities develop such private catalysts for change.
CONCLUSION
The mechanisms suggested here could go a long way toward
reversing the picture of a criminal justice nonsystem falling
apart at the seams. Money in vast sums is the other part of
the life blood of a functioning system. The injection of federal
funds into state crime control programs in 1968 was an im-
portant step in the right direction. Much more money must be
channeled, and must reach down into the cities, if action to
reduce crime is to make a difference. Much more money must
be injected into research, devlopment and pilot projects, if the
outdated techniques of yesterday are to be converted into an
effective criminal process tomorrow.
The Law Enforcement Assistance Administration is doing
a commendable job under adverse circumstances. Congress has
appropriated less money than is needed for grants and staffing;
has Driven only a drop in the bucket for LEAA's vital National
Institute of Law Enforcement and Criminal Justice; and has
beset the entire program with restrictions which make prog-
ress difficult.
Until these impediments are remedied, and until staffed or-
ganizations public and private are developed to assure wise
investment and monitoring of new funds, crime control will
continue to be a high priority campaign fought with bold words
but no system.
CHAPTER 14
THE POLICE AND THEIR PROBLEMS*
In society's day-to-day efforts to protect its citizens
from the suffering, fear, and property loss produced by
crime and the threat of crime, the policeman occupies
the front line. It is he who directly confronts criminal
situations, and it is to him that the public looks for
personal safety. The freedom of Americans to walk
their streets and be secure in their homes in fact, to
do what they want when they want depends to a great
extent on their policemen. 1
There is little question that during the past decade of turbu-
lent social change, our nation's policemen have not been able to
escape from the front lines. More than that, they are called upon
to fight against one side one day and then for it the next day.
The same policeman who on a Wednesday is mobilized to help
control a blazing ghetto riot and arrest throngs of looters may
'by week's end find himself assigned to keep traffic clear from
the parade route being followed by hundreds of blacks conduct-
ing an anti-poverty march.
In fact, the very same policeman may on a Saturday rescue
a hippie college student victimized by a gang of motorcyclists,
and by the next Monday be summoned to the campus to assist
university officials in re-capturing a building held by stone-
throwing, epithet-screaming student dissidents. The same police-
man in the morning may be called "soft and ineffective" by our
* This chapter was prepared by David P. Stang and is based in part
on research contributions by Professor Alfred Blumstein, Director, Urban
Systems Institute, School of Urban and Public Affairs Carnegie-Mellon
University, Pittsburgh, Pa.; Prof. Samuel Chapman, Department of Po-
litical Science, University of Oklahoma; Prof. A. C. Germann, Department
of Criminology, California State College, Long Beach, Calif.; Capt. John
J. Guidici, Oakland Police Department, Oakland, Calif.; George W.
O'Connor, Director, Professionals Standards Division, Inter national Asso-
ciation of Chiefs of Police, Washington, D.C.; Prof. Irving Piliavin,
School of Social Work, University of Pennsylvania; and Donal Mac-
Namara, of Jo^n Jay College, New York City. Interviewing with police
officers of all levels, from chiefs to patrolmen, was also conducted.
285
286 Report of the Task Force on Law and Law Enforcement
"forgotten man" and "fascist pig" by a young revolutionary in
the afternoon. How our nation's police are able to fulfill such
drastically conflicting roles without lapsing into an anomic
stupor 2 is perhaps the best measure of the degree to which the
policeman is in fact a professional.
What is the policeman's job? Who and what is he supposed
to protect? How can he most effectively execute his responsi-
bilities? What are his problems and how can these problems
be solved? These are the questions we address in this chapter.
DUTIES OF THE POLICE
Police responsibilities fall into three broad categories. 3 First,
they are called upon to "keep the peace." This peacekeeping duty
is a broad and most important mandate which involves the pro-
tection of lives and rights ranging from handling street corner
brawls to the settlement of violent family disputes. In a word,
it means maintaining public safety.
Secondly, the police have a duty to provide services which
range from bestowing menial courtesies to the protection of
public and private property. This responsibility is the one that
many police officers complain about the most but, nevertheless,
are called upon to perform the most frequently. In fulfilling
these obligations, a policeman "recovers stolen property, directs
traffic, provides emergency medical aid, gets cats out of trees,
checks on the homes of families on vacation, and helps little
old ladies who have locked themselves out of their apartments." 4
The third major police responsibility, which many policemen
and a considerable segment of the public feel should be the
exclusive police responsibility, is that of combating crime by
enforcing the rule of law. Execution of this task involves what
is called police operations and this ranges from preparing
stakeouts to arresting suspects.
That policemen have difficulty assigning priorities to these
sometimes conflicting responsibilities is one major operating
limitation the police have recently had to endure. 5 There are,
however, other important limitations imposed on the police to
which we shall briefly refer before returning to the crucial
subject of conflicting police roles.
Among these, special attention must be given to manpower
deficiencies, inadequate financing, and frictions with courts and
other governmental agencies.
MANPOWER LIMITATIONS
According to the President's Crime Commission, there are
approximately 420,000 policemen in the United States today. 6
The Police and Their Problems 287
Yet most police departments are under-manned, thus spreading
the existing complement of police personnel much too thin. This
manpower supply has been further depleted by more generous
holiday, vacation and sick-leave policies, reduced weekly work-
hours, increased specialization, continued use of police personnel
to perform a heavier burden of clerical, technical and service
activities more suitable for civilian employees. 7 The manpower
problem is further exacerbated by difficulties in recruiting, espe-
cially recruitment among minority groups; resignations of
experienced police officers; early retirements; overly rigid
restrictions on manpower distribution and assignment; and the
dissipation of police-man-hours in nonproductive or minimally
productive activity. This latter category involves, in part, hours
spent waiting to be called as a witness, writing out multiple
copies of reports, assignment to fixed posts of questionable
utility, being forced to provide special escort services, and other
irritating and time consuming chores. Nor is the available man-
power scientifically allocated either in terms of ratios of police
to population (which range from fewer than 1:1000 to more
than 4:1000) or in terms of crime incidence, traffic volume, calls
for police services or other meaningful indices of demands for
more effective policing.
This inadequacy is magnified by reports that newly recruited
officers are less well-educated than veteran officers, 8 that they
are being assigned to full police patrol duty without completing
the prescribed training; 9 that morale is low and supervision
lax; 10 and that advanced in-service and refresher training to
keep them abreast of legal, social, and technological changes is
inadequate. 11
FINANCIAL LIMITATIONS
In 1968, in the most affluent nation in world history, our
total expenditures for police (Federal, state, and local, includ-
ing sheriffs and such ad hoc police agencies as the New York
City Transit Police, Port of New York Authority Police, park
police, Capitol Police, and other full-time enforcement person-
nel) approximated $3 billion. Most commentators consider this
amount inadequate in light of current recruitment problems,
resignations, early retirement difficulties, and widespread police
"moonlighting" with its negative effects on police alertness and
departmental sick-leave rates.
Inadequate police budgets, too, have made it difficult or
impossible in many jurisdictions to construct needed modern
headquarters facilities, to provide decentralized substations in
areas of demonstrated need, to modernize communications sys-
tems, to install improved traffic control devices, to acquire com-
288 Report of the Task Force on Law and Law Enforcement
puters and other advanced management and operations control
"hardware," to finance pilot projects and demonstrations and
to recruit at highly-paid specialist levels the qualified personnel,
all of which are essential to the implementation of the recom-
mendations of the President's Commission on Law Enforcement
and Administration of Justice and of the National Advisory
Commission on Civil Disorders.
Police costs in the United States have been traditionally a
local burden ... a burden which many local jurisdictions are
no longer able to support if fully effective law enforcement is
to be achieved. Certainly the funds now being provided by Con-
gress through the Law Enforcement Assistance Administration
of the Department of Justice to support police planning, train-
ing, and research will prove of some assistance in easing the
budgetary limitations under which many law enforcement units
are presently operating.
POLICE CONFLICTS WITH OTHER
CRIMINAL JUSTICE AGENCIES
The police establishment is only one of the agencies con-
stituting the criminal justice system. By the very nature of the
criminal justice system, the police are required to cooperate with
the other agencies, including the prosecutors, the courts, the
jails and correctional institutions. In many locations, however,
there is neither formal nor informal machinery for cross-pro-
fessional dialogue between the police and the representatives of
the other agencies involved in criminal justice administration
or policy-making, so that minor irritations and misunderstand-
ings often cumulate into major bureaucratic conflicts. The
failure to involve the courts, prosecutors, and corrections officials
in the training of police, the failure to involve police in the
orientation of newly-chosen judges and prosecutors and in the
training curricula for newly appointed probation and parole
officers, and the even more general failure to consult police in
the planning stages of executive and legislative decision-making
in areas which may directly or indirectly affect their responsi-
bilities or operations all further compound this already difficult
situation.
In recent years the courts in particular have become more
and more the target of severe police criticism. Police problems
involving the courts arise at three levels: (1) Procedural
requirements which result in the loss of many hundreds of
thousands of police man-hours annually because of inefficient
or uncooperative court administration and resistance to changes
in traditional practices (e.g., central booking, computerized
dockets, the impanelling of additional grand juries, and such
apparently simple courtesies as moving cases involving police
The Police and Their Problems 289
witnesses to the top of the calendar or the taking of police
testimony in pre-trial proceedings) ; 12 (2) allegedly improper
dispositions of cases both at preliminary hearings and arraign-
ments and after trial (e.g., dismissal of charges and release of
persons arrested for serious crimes, speedy setting of low bail
or release on personal recognizance of offenders police believe
dangerous and likely to commit additional crimes or granting
probation to dangerous and persistent offenders where proba-
tion supervision is inadequate) ; and (3) constitutional limita-
tions on police tactics and procedures both in general law
enforcement and specifically in the area of criminal investiga-
tion (e.g., the decisions of the Supreme Court which have forced
the police to be more careful in the conduct of searches and
seizures, and in warning suspects of their constitutional rights
against compulsory self-incrimination) .
The question of court-imposed constitutional limitations on
police practices is especially sensitive. Whether these restric-
tions on traditional police practices have actually reduced police
effectiveness is a matter of some controversy even among police
and prosecutors; but a significant consensus among police officers
of all ranks in every part of the country interprets these deci-
sions as favoring the criminal and as deliberately and perversely
hampering, indeed punishing, the police.
One police spokesman has stated:
It would appear that the primary purpose of the police
establishment has been overlooked in the tendency of our
courts and the other officers of the judicial process to free
the most heinous of criminals because of legalistic errors
by law enforcement officers. ... To allow criminals to go
free because of legalistic error turns our judicial process
into a game and makes mockery of our supposedly sophis-
ticated society. . . . From the police standpoint, one of the
very real dangers is that decisions from the courts are breed-
ing indecision and uncertainty in the individual police
officer. The inevitable result is that the policeman's duty
has become so diffused that it is difficult for him to carry
out his responsibilities. 13
Another observer stated even more dramatically that, "The
Courts must not terrorize peace officers by putting them in fear
of violating the law themselves." 14 Views of this kind are set
forth repeatedly in articles and comments in such respected
police professional periodicals as The Police Chief, Law and
Order and Police.
Police in general also have little confidence in the ability of
jails and prisons to reform or rehabilitate convicted offenders.
This is not surprising, of course, for this view is shared, if
290 Report of the Task Force on Law ana Law Enforcement
perhaps for different reasons, by the great majority of American
criminologists and even by residents of our so-called "correctional
system." This lack of confidence in institutional rehabilitation
programs underlies the strong police opposition to the parole
system and the somewhat less aggressive opposition to work
release, school release, and prisoner furlough programs, open
institutions, and halfway houses. There is a rather generalized
feeling among large segments of the police that potentially
dangerous offenders are released far too often on low bail, or
their own recognizance or following conviction far too soon by
parole boards; that these paroled offenders are frequently
inadequately supervised by unqualified parole officers with exces-
sive case-load responsibilities; and that they commit new and
serious crimes thus adding additional burdens of investigation
and apprehension to already overburdened police agencies.
Police in some jurisdictions have encountered difficulties in
their relationships with the executive and legislative branches
of government. These difficulties range from the irritation of
requests for special treatment for favored traffic offenders and
detail of police personnel to jobs as chauffeur and doorman in
the Mayor's office to outside interference in internal personnel
matters such as assignments and promotions and in general
policy matters such as enforcement strategies and operational
tactics.
Legislatures too have been criticized by police for failure to
appropriate sufficient funds to provide adequate law enforce-
ment for repeated investigations and inquiries which contribute
to a negative police image; for penal law and criminal procedure
changes which reduce penalties, make parole easier, or impose
new restrictions on police efforts; and for failure to protect the
police from changes in their working conditions which police
feel deleterious to their welfare. 16
POLICE ROLE CONFLICTS
As we stated earlier, perhaps the most important source of
police frustration, and the most severe limitation under which
they operate, is the conflicting roles and demands involved in
the order maintenance, community service, and crime-fighting
responsibilities of the police. Here both the individual police
officer and the police community as a whole find not only incon-
sistent public expectations and public reactions, but also inner
conflict growing out of the interaction of the policeman's values,
customs, and traditions with his intimate experience with the
criminal element of the population. The policeman lives on the
grinding edge of social conflict, without a well-defined, well-
understood notion of what he is supposed to be doing there.
Police involvement in order maintenance situations such as
The Police and Their Problems 291
family disputes, tavern brawls, disorderly teenagers loitering
in the streets, quarrels between neighbors, and the like inevitably
produces role conflict. One party is likely to feel harassed, out-
raged or neglected. The police officer quite frequently has no
clear legal standard to apply or one that, if applied, would
produce an obviously unjust result. 17 The victim is often as
blameworthy as the perpetrator, often the parties really want
him only to "do something" that will "settle things" rather than
make an arrest. Should an arrest be demanded, he is in many
jurisdictions foreclosed from complying since the misdemeanor
complained of was not committed in his presence, and the
vociferously complaining victim or witness is unwilling to sign
a complaint. 18 Thus, he must devise a solution based almost
entirely on his own discretion and judgement. 19
Oftentimes the policeman is forced to arrest persons for viola-
tions of laws he does not believe are fair. But more often, he
sees the fear and the pain and the damage that crime causes,
and he feels that criminals are getting away with too much.
This frustration mounts each time he arrives at the scene of a
recently-reported crime to discover the offender has escaped.
He finds justification for his contempt for the "criminal element"
when he reads of public approval of night-stick justice tech-
niques. 20
Police in the United States are for the most part white,
upwardly mobile lower middle-class, conservative in ideology
and resistant to change. In most areas of the country, even
where segregation has been legally eliminated for long periods,
they are likely to have grown up without any significant contact
with minority and lower socioeconomic class life styles and
certainly with little or no experience of the realities of ghetto
life. They tend to share the attitudes, biases and prejudices of
the larger community, among which is likely to be a fear and
distrust of Negroes and other minority groups.
Appointed to the police force and brought into day-to-day
contact with what is to him an alien way of life, the young
police officer experiences what behavioral scientists refer to as
"cultural shock." His latent negative attitudes are reinforced
by the aggressive and militant hostility which greets him even
when he is attempting to perform, to the best of his ability, a
community service or order maintenance function, or is attempt-
ing to apprehend a criminal whose victim has been a member
of the minority community.
Negative responses to minorities and to non-conforming
groups such as "hippies," campus militants, antiwar demonstra-
tors, and the new breed of "revolutionaries," are also reinforced
by the socialization process which transforms the new recruit
into a member of the police community. Not only during the
292 Report of the Task Force on Law and Law Enforcement
formal training process but in the everyday contacts with his
fellow officers and his participation with them in both on-duty
activity and off-duty socializing tend to mutually reinforce the
police ideology, the closed-ranks defensiveness, which separates
"we" who are on the side of law, order, morality and right from
"they" who are immoral, criminal, delinquent, idle, lazy, dirty,
shiftless or different.
Efforts to bridge the gap between the police and some seg-
ments of the community have proved only minimally success-
ful. 21 The realities of police confrontation with these "undesir-
able elements," whether on occasions of episodic violence or,
more importantly, when a police officer is killed or seriously
injured as a result of minority group militance, tend to offset
the gains made by efforts directed toward improving police
attitudes and police-community relationships.
POLICE INEFFECTIVENESS
The cumulative result of the many limitations and frustra-
tions described above is an evident inability of the police, as
presently organized, manned, financed, equipped and led, to
meet effectively all of the demands and expectations placed on
them by the public. These inadequacies are evidenced in their
inability to prevent crime, their declining record in solving
crimes known to them; their sluggish response to and
indifferent investigation of all but major crimes or those involv-
ing important persons, businesses, or institutions. 22 Particularly
evident is an inability to deal effectively with crime in minority-
populated ghettoes for reasons which involve minority group
attitudes and noncooperation as importantly as police attitudes,
facilities and efficiency.
Various analyses of police confrontations with minority and
protest groups have identified 'over-response/ inadequate crowd
control training, poor planning, failures in supervision and
leadership, as well as the residual hostility of the police to the
minorities and nonconformists involved, their suspicion of dis-
sent, and their disagreement with the demonstrators on the
substantive issues as causative factors. 23 Nor have these analyses
neglected to underline the difficult conditions to which the police
have been subjected: the provocations, verbal and physical, to
which they were subjected by participants in demonstrations; 24
and at least in some instances the distorted or at least unbal-
anced coverage by news media. 25 That at least some participants
in many of these conflict episodes wanted to provoke a police
over-response may be true but that individual police officers,
and sometimes apparently whole police units, cooperated enthu-
siastically with their plans is equally obvious. 26
The Police and Their Problems 293
That the police and major elements of the public are becoming
more polarized is well established. 27 This polarization is inten-
sified by police frustrations growing out of what they perceive
as the public's unreasonable expectations of them and even more
unreasonable limitations imposed on them, the growing militancy
of minority and dissident groups, their strategy of confronta-
tion, and the vicious cycle of police overresponse. These factors
often are aggravated by new and highly publicized charges of
police brutality and derogatory attitudes toward minority
groups, which attract new sympathizers from previously mod-
erate or non-activist segments of the population and often tend
to encrurage reactive ghetto counter-violence.
POLICE POLITICIZATION
Recently, the police have begun to realize that acting exclu-
sively as individuals in attempting to deal with their role, con-
flicts, frustrations and limitations has failed to pay dividends.
Thus, as is the case with other newly self -aware special interest
groups in our society, the police have begun to enter active
politics on a much larger scale.
Police participation in the political process in America has
traditionally been limited and local: limited to securing favor-
able legislation as to pensions, working conditions and pay
rates, 28 with occasional lobbying for or against proposals to
abolish the death penalty, legalize gambling, or raise the age
of juvenile court jurisdiction and local in the sense that it
invariably involved approaches by the locally organized police
to municipal authorities or at most to the state legislator repre-
senting the district. Occasionally charges would be made of more
active police involvement in local campaigns, but there was a
consensus even among the police that they, like the military,
should abstain from active, overt participation in politics. Vari-
ous police departments incorporated in their police regulations
stringent rules prohibiting political activity other than voting.
In the past decade, largely as a result of efforts to raise police
pay scales to a parity with those of skilled workmen, more
militant police associations some trade-union affiliated, others
in loose state and national affiliations escalated their pressure
tactics so that job action, "blue-flu," and even threatened
police strikes became common-place in police-municipality salary
disputes. 29
The major impetus to police politicization, however, was with-
out doubt the attempt to impose a civilian review apparatus to
adjudicate complaints against police officers by aggrieved citi-
zens and attempts of citizen groups to restrict police use of
firearms. 30 The proposals for civilian review boards were fought
294 Report of the Task Force on Law and Law Enforcement
in the communications media, in the courts, in the legislature,
and finally in a popular referendum in New York City in which
the police won a resounding victory after a campaign which did
much to further polarize the dissident minorities. 31 The victory 32
convinced many in the police community of the desirability of
abandoning the internecine battles which had divided them and
reduced their political effectiveness in the past.
The future of expanded police participation in politics is not
entirely clear at present. Certainly there has been important
police support for conservative, even radical right, candidates
in recent national and local elections, and there are signs that
police officials are finding increasing opportunities as success-
ful political candidates.
But the police have not had an unbroken - record of political
successes. In the 1969 legislative session in Albany, a bill abol-
ishing the fifty-eight year old three-platoon system passed by
a near unanimous vote, despite strong opposition by the united
police pressure groups. Whether activities such as aroused
police officers seeking the removal of a judge in Detroit, or
an equally aggressive organization (the Law Enforcement group
in New York City) seeking to monitor the conduct of judges
and their case dispositions, will be widely and successfully
imitated cannot be predicted at this time. 33
What is clear, however, is that a politicized police force united
and well financed and perhaps closely allied to conservative
political and social forces in the community poses a problem
for those interested in preserving internal democracy and insur-
ing domestic tranquility. As the only lawfully armed force within
the community, and possessed by the nature of their duties and
responsibilities of unique authority and powers over their fellow
citizens (including access to derogatory information, potential
for discriminatory enforcement of the laws against their oppo-
nents, licensing and inspection functions) , the united incursion
of the police into active politics must be regarded with some
trepidation.
More and more, the police community perceives itself as a
minority group, disadvantaged and discriminated against, sur-
rounded by, servicing, and protecting a public, which is at
best apathetic or unaware of the frustrations and limitations
imposed on the police; and at worst, unsympathetic or hostile.
The dynamics of this self-perception, assuming a continuation
or possible escalation of the external aggravants (verbal and
physical abuse of the police; more stringent judicial and legisla-
tive restrictions; budgetary difficulties), involve reinforced
defensive group solidarity, intensified feelings of alienation and
polarization, and a magnified and increasingly aggressive mili-
tancy in reaction and response to those individuals, groups and
The Police and Their Problems 295
institutions (social and governmental) perceived as inimical
an action-reaction pattern which, unfortunately, will inevitably
be replicated within the aggrieved and dissident communities.
SOME SUGGESTED SOLUTIONS
There are two areas of police-public confrontations in which
changes in police policy and practice can lead to a reduction of
friction and restoration of public respect for the police which
the police themselves feel to be so sorely lacking. The first
involves highly visible police relationships with the public, often
involving the combined presence of great numbers of police and
the public at the same time and place. The second is the less
visible contact of the police with the public and usually involves
ordinary relationships between individual police officers and
individual members of the public.
THE POLICE AND POLITICAL VIOLENCE
The police often believe that ideological and political conflicts
like the Chicago convention demonstrations involve clashes
between good, upright and honest groups of citizens on the one
hand and bad, lawless and deceitful troublemakers on the other.
In fact, however, these great struggles between large groups
of the public more clearly involve political difference than they
do questions of criminal behavior. Often the "good, upright and
honest" citizens are better characterized simply as conservative
elements of the population who are resisting the demands of
other factions seeking social, political, or economic benefits at
the direct expense of the conservative groups.
Unfortunately, these conflicts involving demonstrations, mass
protests, and strikes by the dissidents often involve violence
and the call-up of the police for front-line duty. The police,
instead of taking a neutral position in attempting to restore
order during these primarily political clashes, often tend to
become participants in the clash on the side of the conservative
elements and against the dissident elements. 34 The dissidents
quickly recognize the active participation of the police in siding
with the "enemy" and then begin to concentrate their attacks,
both verbal and physical, more directly on the police than on
the groups whose interests the police are supposedly protecting.
The cycle becomes vicious and the ultimate loser is always the
police.
This recurring phenomenon has been discussed quite exten-
sively in the Task Force report on Violence in America: His-
torical and Comparative Perspectives. Thus, we refer only for
example to the conservative-reformist clashes, entailing the
296 Report of the Task Force on Law and Law Enforcement
victimization of the police, between management and labor of
the 1930's; between the landowners and the migrant farm
workers in California of the late 1930's and early 1940's;
between the small town or rural white Southern population and
the civil rights workers and Southern blacks of the early 1960's;
between the urban governments, employers, landlords, and busi-
ness establishments and the anti-poverty and black power advo-
cates of the middle to late 1960's. On each of these battlefields
some of the police have unnecessarily taken sides and have be-
come the target of violence.
In Rights In Concord, this Task Force's investigative report
on the Washington counter-inaugural demonstration, we have
shown that when the police, through disciplined supervision,
refrain from taking sides and steadfastly remain neutral in the
face of a political demonstration that is perhaps distasteful to
most of them personally, physicial injuries and the destruction
of property are minimized and the police emerge as widely
respected umpires and peace-keepers. Thus, with respect to politi-
cal differences between elements of the population in these
socially troubled times, police leadership must decline invitations
to take sides and to refrain from engaging in unnecessary fights.
Only in this way can the police surely reemerge as the respected
keepers of the peace the principle duty of their worthy pro-
fession. 35
THE PATROLMAN AND THE PEOPLE
The second area of police-public confrontation in which there
has been a loss of respect for the police is the routine day-to-day
encounters between individual police officers and members of
minority groups. These encounters form the crux of what is
commonly referred to as the "police-community relations prob-
lem." The problem manifests itself particularly in the inner city.
The crowded center city is where crime rates are the
highest, where the black minority has experienced the
catharsis of bloody, blazing riots, and is now struggling
to develop a new and proud identity. The people no longer
doubt that they are entitled to be treated with respect and
dignity, and often militantly demand it. They are aspiring
for the social and material benefits that they have been so
long without. Hopes are high, but the results have not yet
begun to materialize substantially. Houses and apartments
are still over-crowded, too cold in the winter, and unbear-
ably hot in the summer. Homes still are often without
fathers. Mothers still are searching for the where-withal
to purchase the next meal. Children of all ages are out on
the street and in the alleys.
The Police and Their Problems 297
They see the very visible white man who, for years, has
owned the corner grocery stores. He still tells them to get
out if they are not going to buy anything. But he's scared
of them now and they know it. So they goad him, throw
his merchandise around and sometimes steal it if they think
they can do so without getting caught. The grocer calls
the police.
The police arrive in a radio-dispatched squad car with
red lights flashing. The young candy thieves have made a
clean getaway. Their friends, however, are still on the
street. The policemen talk with the grocer then return to
the street to question the kids. The kids are amused and
enjoy the excitement. "No," they did not see anybody leave
the store. The policemen know otherwise and in frustration
they ask, "What are you kids doing here?" "Nothing," is
the answer. "Then you better move on or we're gonna lock
you up," the kids are told. Reluctantly they make feeble
efforts to obey. The police get back into their squad car
and start to drive off. Ten seconds later they hear the
kids' jeers and laughter.
Night falls. More of the older kids are now seen on the
street corners "shucking and jiving." Some bounce basket-
balls. Some listen to portable radios. Others dance or feign
boxing matches.
In the homes the fights begin. Sometimes it is between
man and woman; sometimes between teenage child and an
aunt or grandmother. The police are called again. The
people on the street watch as the squad car arrives. The
police go inside; they hear shouting. The accusations begin.
The police explain that in order for them to arrest anybody,
the complainant is going to have to go down to the D.A.'s
office and sign a complaint. "Just lock the 'so an so' up,"
is the response. The police do the best they can to quiet
things down, then leave. Nobody is satisfied. As the squad
car pulls away from the curb, the kids jeer again.
Later in the evening the same policemen see a loud street
corner disturbance involving about a dozen young men. The
policemen are now a little more weary. In another half hour
their tour will be finished.
They get out of the car and ask, "What's going on ?" Two
of the young men continue to swing at one another.
"Alright, break it up !", a policeman orders. One of the two
stops swinging. The other, apparently intoxicated, continues
to brawl. The policemen get gruff. "I said, 'knock it off'!,"
barks the policeman. The young fighter utters a profane
epithet followed by, "Honky cop." More people gather
around.
298 Report of the Task Force on Law and Law Enforcement
One of the policemen responds, "Buddy, you're coming
down to the stationhouse. We're gonna lock you up." The
policemen reach for his arms. He kicks, swings his fists,
and continues to yell "Honky cop!" The two policemen
slam him up against the squad car, handcuff him, pat him
down and shove him into the back seat. The crowd is
sullen. Fists are clenched and teeth are gritted. One of
the policemen says, "Move on. We don't want any more
trouble out of you people tonight." The policemen get back
into the squad car and drive off. The still undispersed
crowd mutters words of hatred.
These are ordinary events in the average day of a policeman
assigned a squad car beat in the center city. There is no love
lost between the police and the center city residents. The resi-
dents, whether they be black, Puerto Rican, Mexican, of any
other minority group, or just plain hippies, see the police
as bullies, unfair, stupid, rude, and brutal a symbol of
"Whitey's power." The police, in turn, see the minority groups
as hostile, dirty, lazy, undisciplined, dishonest, immoral, and
worst of all, disrespectful of the "badge" they try to represent.
"In the old days," the police say, "colored people would
move on if you told them to. Now they don't. They just
give you a bunch of crap."
On a wooden fence in the center city there are new epi-
grams scrawled in crayon. They read 'Black Power!," "Say
it now and say it loud I am black and I am proud !," "Kill
a pig."
IMPROVING POLICE-COMMUNITY RELATIONS
The police are, indeed, prejudiced against minorities. And the
minority groups are equally prejudiced against the police. The
prejudice on both sides is not without some foundation. The
views of each side toward the other are constantly being rein-
forced and have become self-fulfilling prophesies. Doing some-
thing about this problem is what is called "improving police-
community relations."
The need to improve police-community relations has existed
and been recognized for decades. Local, state and federal com-
missions have written hundreds of pages about it. Police experts
and academics have written books about it. 36 Public officials,
including police chiefs, have made speeches about it. Civil rights,
leaders have conducted demonstrations concerning it. All agree
that something should be done. Recommendations have been
made by the score. The most frequently made suggestions many
of them worthwhile include :
The Police and Their Problems 299
Extending human-relations training of recruits and offi-
cers;
Creating or enlarging police-community relations units
within police departments;
Starting precinct and city-wide citizen advisory commit-
tees, including minority leaders, to meet with the police;
Developing programs to educate the public about the
police, such as visits of school children to precinct stations,
lectures by police officers to adults or youth groups, and
school courses concerning police work;
Running recruitment campaigns aimed at members of
minority groups;
Ending discrimination within police departments, such
as that relating to promotions, and integration of patrols;
Issuing orders banning use of abusive words or excessive
force by police officers; and
Developing procedures to handle citizen complaints within
the police department which are fair and designed to impose
real discipline. 37
Other recommendations have included the suggestion that
the police be disarmed or at least that each police department
adopt a strict firearms use policy. 38 Some have suggested that
the police discontinue wearing military-type uniforms and
instead don more friendly working garb, such as blazers and
slacks. 39 Still others have encouraged the adoption of psycho-
logical pre- and post-recruitment tests designed to identify for
"weeding-out" purposes the bullies and misfits. More extreme
suggestions have been made to the effect that all the "bully
cops" be fired or retired and that college graduate, social science
majors be hired to replace them. Some have suggested either
neighborhood control of the police, or that neighborhoods desir-
ing it police themselves and that regular policemen not be per-
mitted to enter such areas. 40
Although some of these ideas have been adopted by some
police departments in whole, or in part, in even the most pro-
gressive police departments the problem of police-community
relations remains a sore spot. The reason is that most of the
efforts at improving police-community relations have been
undertaken merely as "programs," minor changes in the police
department's organizational structure, or as public relations
efforts.
To produce effective results, efforts at improving police-com-
munity relations require modification of the underlying context
of attitudes stemming from the everyday contacts between the
policeman on the beat and the people he normally deals with.
The individual patrolman must recognize that for some time to
300 Report of the Task Force on Law and Law Enforcement
come he will be viewed by members of the center city community
not as an individual but as an oppressive symbol of the dominant
white society. Of course, no community believes that "all cops
are bad," and when a police officer treats people with consistent
fairness, he will tend to gain a reputation for being "a good
cop." But the depth of hostility between the police and the
ghetto resident means that the policeman will have to persist in
his efforts to be "a good cop" without any significant rewards
in terms of appreciation from the community he serves.
On the other hand, the inner-city community, and particularly
its leaders, must recognize that policemen cannot be converted
into social workers who operate on the assumption that felons
are morally innocent products of a criminogenic environment.
More importantly, members of the center city community must
recognize not only the inevitability, but the desirability, of the
policeman's primary identity as a member of the "thin blue
line." A policeman's over identity with the community and a
non-identity with "the force" tends to destroy a policeman's
effectiveness both in the eyes of the community, and of his
peers and superiors on the force. Just as members of the
military think of themselves as "the military" as opposed to
"the civilians," police officers, too, will continue to think of
themselves primarily as policemen. Thus, instead of attempting
to destroy this "we-they" identity it should, be capitalized upon
and used to maximum advantage.
It is true that the 'we-they" identity of the police 'has unde-
sirable aspects to it, especially an apparent need to be tougher
than 'they.' It is also true, however, that this toughness, or at
least a confidence in a superior toughness, lies at the very foun-
dation of a policeman's ability to arrest a violently resisting
suspect who is 6 inches taller and 75 pounds heavier than he,
or to calm an unruly group of aggressive teenagers. The prob-
lem is how to shape the "we-they" identity so that the end result
will not lessen the policeman's ability to apprehend criminals
and maintain order, yet at the same time not destroy the police-
man's desire or ability to interact on a humane, civil basis with
the community.
We do not accept the views of some critics that the problem
is a dilemma, the solution to which is impossible without chang-
ing the very nature of the policeman's role. Scores of interviews
with the police themselves have convinced us otherwise (although
we do believe that the present service-providing function of the
police can be shifted in part to civilians and citizen auxiliaries).
When we asked various policemen what they thought the
main advantage was in being police officers as contrasted to
most other occupations, most replied, first, that it was the
superior ability to understand people and how they behave that
The Police and Their Problems 301
was afforded them by constant exposure to all segments of the
public. Secondly, the majority answered that it was the ability
to "keep a cool head" under stress, danger, and provocation. A
black policeman, asked why he decided to become a police
officer, gave us this answer:
Man, when I was a little kid I thought cops were God.
I lived in the ghetto and I saw drunks, addicts, cuttings,
shooting, and husbands hitting wives and kids fighting on
street corners and other bad scenes everyday.
Somebody always called the police. The police arrived
in the middle of the hassle and were always cool and always
got on top of the problem fast. If they could break it up
by quiet mouthing it they would. If they had to bust some-
body they did it quick and were gone. Whatever it was,
they arrived on the scene, got with it fast, stopped the
trouble and split always with a cool head. I figured that
was smooth and so I decided when I was a kid I wanted
to be a policeman and do the same thing. 41
Understanding and coolheadedness these qualities represent
the very essence of a "good cop." These are the traits most
required by the patrolman in the performance of his peace-
keeping function. If these two qualities can be developed in
more of our policemen, it will do much to alleviate tensions
between the police and the community.
The breeding ground of community resentment of the police
is principally at the patrolman level, not at the command level.
When patrolmen fail to show understanding, i.e., act insensi-
tively, and fail to maintain coolheadedness, i.e., loose control
and act intemperately, the community becomes incensed. The
state of police-community relations is basically the result of
everyday contacts of the community with the patrolmen, not
the chiefs. The problem of police-community relations is thus
one of ascertaining how to encourage understanding and dis-
courage insensitivity in the patrolman, how to encourage cool-
headedness and discourage losing control or "blowing one's
cool."
The yardstick for testing the application of a mature, sensi-
tive understanding and coolheadedness is often (once deciding
that intervention is necessary) 42 how quickly and quietly a
patrolman can restore calm without having to make an arrest.
This is what 'good cops' are made of. This is what constitutes
"good police work." This is what breeds community respect for
the police.
One of the major problems with the present system of policing
is that of convincing patrolmen that when they perform their
peacekeeping duties well, they are rendering a service no less
302 Report of the Task Force on Law and Law Enforcement
valuable to the community than when they perform their law-
enforcement function. Presently the rewards to a patrolman
who is an effective peace-keeper at best, are slight. His promo-
tion in rank is seldom the result of a good record at peace-
keeping. This situation should be changed and greater recogni-
tion accorded to the effective peace-keeper as well as to the
effective crime-fighter. (Properly trained sergeants and lieu-
tenants who demand compliance with departmental policy can
also ensure remarkable results.)
As Professor Wilson has noted:
The central problem of the patrolman, and thus the
police, is to maintain order and to reduce, to the limited
extent possible, the opportunities for crime." 43
A police department that places order maintenance upper-
most in its priorities will judge patrolmen ... by their
ability to keep the peace on their beat. This will require,
in turn, that sergeants and other supervisory personnel
concern themselves more with how the patrolmen function
in family fights, teenage disturbances, street corner brawls,
and civil disorders, and less with how well they take
reports at the scene of burglary or how many traffic tickets
they issue during a tour of duty. Order maintenance also
requires that the police have available a wider range of
options for handling disorder than is afforded by the choice
between making an arrest and doing nothing. Detoxification
centers should be available as an alternative to jail for
drunks. Family-service units should be formed which can
immediately assist patrolmen handling domestic quarrels,
provide community-service information, answer complaints,
and deal with neighborhood tensions and rumors. 44
Some police departments are already making notable progress
along these lines. Under a federal grant, the New York City
Police Department has formed a "Family Crisis Intervention
Unit" consisting of 18 highly trained officers to handle inter-
family assaults and violence in West Harlem. Although it is
estimated that as much as 40 percent of police injuries stem
from family complaint calls, these crisis unit officers have not
received any injuries in 15 months. Moreover, in the 1,120
family crises in which they have intervened, there has not
been a single homicide among the families. 45 At the root of this
project is a recognition that specialized peacekeeping training
pays off.
Police departments throughout the country are beginning to
conduct what is referred to as "provocation training." These
projects range from training involving crowd control to handling
of street corner disturbances. Provocation training entails, in part,
The Police and Their Problems 303
staging the kind of provocation which police offenders may
expect to face on the job. The trainees are taunted by instructors
who call them names, use obscene gestures, and generally imitate
the kinds of abuse policemen may expect to face in the conduct
of their assigned responsibilities. The purpose of this specialized
training is to develop and maintain coolheadedness under
extreme provocation.
Other projects being conducted by large city police depart-
ments involve efforts to establish closer links between patrolmen
and the neighborhoods or communities they serve. The advan-
tage of establishing firmer ties with the community is that it
increases a police officer's capacity to make reliable judgments
about the character, motives, intentions and future actions of
those among whom they keep the peace. As Professor Wilson
has suggested, "The officer's ability to make such judgments is
improved by increasing his familiarity with and involvement in
the neighborhood he patrols, even to the extent of having him
live there. The better he knows his beat, the more he can rely
on judgments of character. . . ." 46 One method being used by
several police departments in achieving this end is through a
return to the foot-beat policeman. Most cities which have
increased the number of foot-beat patrolmen have used them
as a supplement to squad-car or motorcycle beats, thus preserv-
ing the mobility inherent in the latter technique. Other police
departments have been experimenting with motorscooters in
combination with foot-beat patrols.
Another notable example of a department's attempt to bridge
the gap between the police and the community is the model
precinct project being conducted by the Washington, D.C.,
Metropolitan Police. This project involves the creation of neigh-
borhood centers which are staffed around the clock by resident
civilians as well as police officers. The police teams working out
of the centers are assigned for long periods of time to work
in the neighborhoods covered by the centers' jurisdiction. Instead
of being spread thin, they have an opportunity to get to know
families, youth on the street, householders, and proprietors of
businesses much more intimately. With a narrower area of
patrol responsibility, the possibilities for positive, interested,
and friendly contact among police and citizens is greatly
improved.
The resident civilian workers, employed and trained by
agencies such as welfare and legal aid, provide assistance to
citizens referred by police on patrol, as well as to those who
walk in off the street. These civilian positions help relate police
peacekeeping to other activities of a positive help-giving nature,
and to provide avenues by which civilians from the neighbor-
304 Report of the Task Force on Law and Law Enforcement
hood can formally assist in keeping the peace (and perhaps
later enter into careers in law enforcement or allied fields) .
MINORITY RECRUITMENT
One fundamentally important method by which the police
can improve their relations with the public is through increased
recruitment of minority group policemen. The absence of many
minority group policemen in our Nation's center city areas has
been a source of community hostility for many years.
This Task Force surveyed minority recruitment efforts by
police departments in several large cities. Although we found
a rising percentage of minority policemen being recruited each
year, the ratio of white to minority group policemen on any
force never approximated the ratio of white to minority citizens
in any given city's total population.
Many of the cities reported stepped up recruiting campaigns
for minority group policemen. We inquired about the relative
lack of success of such campaigns. One police chief answered:
The problem as we see it is twofold: (1) in today's labor
market there is full employment and special efforts are
being directed toward the Negro community by private
industry in an effort to attract qualified applicants. These
companies are able to offer outstanding starting salaries and
numerous fringe benefits that place police departments in
a competitive disadvantage; (2) several of our Negro appli-
cants have expressed the opinion that many segments of
the Negro community regard Negro officers as "Uncle
Toms" and enforcers of a white man's justice and are there-
fore hesitant to apply with a police department. Also we
have not been entirely pleased with our efforts in the Negro
community. Organizations such as the Urban League and
the NAACP have not been able to refer many applicants
to the Department.
There are other problems too. Although we found that in
terms of percentages more minority group recruits succeeded
in graduating from police training school than did white police-
men, more minority applicants failed the original entrance
examination than did whites. We do not feel that these failures
were "arranged" by prejudiced police officials. The failures seem
to us to reflect the tragedy of the ghetto schools' failure to edu-
cate its students.
The police are caught in a bind. Law enforcement consultants,
Presidential and State crime commissions constantly urge that
recruitment standards be upgraded. The result is that many
applicants for police work who have attended ghetto schools
The Police and Their Problems 305
simply are not intellectually equipped to pass the entrance
examinations. If more minority policemen are to be recruited,
accommodations must be found for the disparities in public
school education.
Some police departments have been making commendable
efforts at achieving such an accommodation. The Atlanta Police
Department reported to us that during the summer months it
employed 50 "Community Service Officers" between the ages
of 17 and 21. These young men are recruited from the heart of
the ghetto and are furnished police uniforms and equipment
(except firearms). Their work is largely in the ghetto and has
resulted in a betterment of police community relations. The
Chief of Police reported to us that, most of them returned to
school in October to finish their education and "we are con-
vinced that eventually we will get at least 40 good patrolmen
out of this group."
Other cities have shown similar good faith through special
recruitment campaigns by sound truck, neighborhood centers,
newspaper, TV, radio and billboard advertisements. More
efforts of these kinds are needed if minority group policemen are
to have an equal opportunity to demonstrate an ability to serve
the community in the interest of keeping the peace.
CONCLUSION
That the policemen of our country are both criticized and
misunderstood by large and diverse elements of the population
is becoming increasingly clear. That these diverse elements make
inconsistent and contradictory demands on the police is also
clear. As a result of being thus criticized and misunderstood,
and being called upon to perform inconsistent and contradictory
services in the front lines of our disturbed and often violent
urban society, the policeman is becoming more confused not only
about what his function is, but also about what it should be.
Besides lacking the financial, manpower and technological re-
sources necessary to respond adequately to the many demands
made of them, the police also lack a coherent sense of what
direction their changing mission must take. Our police conse-
quently are becoming more alienated from many factions of the
pluralistic society which it is their duty to protect. The police
have thus begun to fight back, not only as individuals with
threats and counterviolence, but also as an increasingly or-
ganized group doing combat in the political arena.
How are we to bring the police and the diverse groups they
serve back together again? With regard to the police taking
sides in primarily political struggles, bitter past experience,
at least, dictates that the abstention of the professional
306 Report of the Task Force on Law and Law Enforcement
is the wisest choice. As to day-to-day contact between the police
and the citizenry, there must be renewed attention to the peace-
keeping role of the patrolman on the beat, which entails in part
increased efforts to develop in the patrolman the understanding
and coolheadedness which that vital role demands. Despite the
depth of the hostility which exists between the police and some
of the communities they serve, we believe that a "good cop"
can still be a good friend to all of our people. Better training,
supervision, and recognition, together with more effective minor-
ity group recruitment, are needed if our hopes of producing
police excellence are to materialize.
REFERENCES
1. President's Commission on Law Enforcement and Administration of
Justice (hereinafter cited as Crime Commission), Challenge of Crime
in a Free Society (Washington, D.C.: Government Printing Office,
1967), at 92.
2. See Arthur Niederfhoffer, Beyond the Shield: The Police in Urban
Society (Garden City, N.Y.: Doubleday, 1967), at 95-108.
3. See, generally, O. W. Wilson, Municipal Police Administration (1961) ;
Bruce J. Terris, "The Role of the Police," 374 Annals 58-69 (1967);
Crime Commission, supra note 1, Task Force Report: The Police;
Schwartz and Goldstein, Police Guidance Manuals (1968) ; and James
Q. Wilson, Varieties of Police Behavior (Cambridge: Harvard Univer-
sity Press, 1968).
4. Wilson, Varieties of Police Behavior, id., at 4.
5. See generally, Paul Chevigny, Police Power; Police Abuses in New
York City (New York: Pantheon Books, 1969); The Police: Six Socio-
logical Essays, David Bordua, ed. (New York: John Wiley & Sons,
1967) ; Jerome H. Skolnick, The Police and the Urban Ghetto (1968) ;
Niederhoffer, supra note 2.
6. Crime Commission, supra note 1, The Challenge of Crime in a Free
Society, at 91. More recent reports indicate that the number of police-
men in the United States has climbed to nearly 500,000, yet most de-
partments are still undermanned.
7. In ch. 17, infra, we discuss the possibilities for alleviating police man-
power shortages through the use of citizen volunteers to perform some
police functions.
8. Not only are far fewer college graduates (or men with some college
training) found among recruit classes but large numbers have only a
high school equivalency diploma and still others are from the lower
quarters of their high school classes. Time, Oct. 4, 1968, at 26, reports
this true of recent Detroit police recruits; Chief William Beall of the
Berkeley, California, Police Department calls it "a sharp decline in
the educational level of recent police recruits; and an Oakland, Califor-
nia, police captain with twenty-seven years service states: "We are not
getting the type of college people in the department that we were before."
See also Niederhoffer, supra note 2, at 16-17, 209-210. Part of the
reason for this failure is that college graduates do not wish to begin
a police career at the bottom of the ladder. Few police departments
have adopted the Crime and Kerner recommendations for lateral entry
for college graduates.
The Police and Their Problems 307
9. Staff interviews with a New York patrolman recently graduated from
the Police Academy and with a police sergeant-instructor. See also
memorandum from Prof. George D. Eastman to the Commission, dated
Sept. 30, 1968, especially at 3-4.
10. This Commission's Task Force Report entitled The Politics of Protest
at 192-194 and Municipal Yearbook (Washington, D.C.: Internationl
City Managers Association, 1968), at 339-350. Klein, The Police:
Damned If They Do-Damned If They Don't (1968).
11. Crime Commission, supra note 1, Challenge of Crime in a Free Society,
at 113. See also James Q. Wilson, "Police Morale, Reform and Citizen
Respect: The Chicago Case," in The Police: Six Sociological Essays,
supra note 5, at 137-162.
12. See discussion in ch. 21, infra.
13. Ouinn Tamm, "Police Must Be More Free," in Violence In The Streets,
Shalom Endelman, ed. (Chicago: Quadrangle Books, 1968).
14. Id.
15. See ch. 20, infra.
16. E.g., the almost unanimous approval of the so-called "Fourth Platoon"
Bill by the New York State legislature in the face of strong opposition
by police organizations is a recent example of the complaints falling
within the latter category.
17. Schwartz and Goldstein, supra note 3, at Nos. 4, 7, and 9. And see
our discussion of "over-criminalization" in ch. 23, infra.
18. Id.
19. See Wilson, Varieties of Police Behavior, supra note 3 at 83-139.
20. 56 percent of the American public expressed approval of the Chicago
police handling of unruly demonstrators at the Democratic National
Convention last summer. New York Times, Sept. 18, 1968, at 25.
21. Such efforts indue 1 e human relations courses, police-community councils,
recruitment of minority group policemen, advanced educational oppor-
tunities, and civilian complaint mechanisms.
22. John Guidici, "Police Response to Crimes of Violence," a paper sub-
mitted to this Task Force, at 1-14.
23. See Report of the National Advisory Commission on Civil Disorders
(Washington, D.C.: Government Printing Office, 1968) and Chevigny,
supra note 5, at 161-179.
24. See, e.g., Rights in Conflict, a special report to this Commission by
Daniel Walker, Director of the Chicago Study Team.
25. Guidici, supra note 22, at 7-8.
26. See Rights in Conflict, supra note 24.
27. See, e.g., The Politics of Protest, supra note 10; and Shoot-Out in
Cleveland and Miami Report, two investigative reports submitted to
the Commission.
28. Wilson, Varieties of Police Behavior, supra note 3, at 248.
29. Chevigny, supra note 5, at 51-83.
30. Id. See also Chapman and Crockett, Gun Fight Dilemma: Police Fire-
arms Policy (1963) ; Washington Post, Sept. 18, 1968, at A-l.
31. Id.
32. "The Administration of Complaints by Civilians Against the Police,"
77 Harv. L. Rev. 499, Jan. 1964. See also Thomas R. Brooks, " 'No!'
Sav f h the P.B.A., New York Times Magazine, Oct. 16, 1966, at 37;
Ralph G. Murdy, "Civilian Review Boards in Review," and Aryeh
Neier, "Civilian Review Boards Another View," Criminal Law Bul-
letin vol. 21, No. 8(1966) at 3 and 10; Kenneth Gross and Alan Reit-
man, Police Power and Citizens* Rights (New York: American Civil
Liberties Union, 1966) ; "Civilian Complaints Against the Police," 22
Bar Bulletin 228 (New York County Lawyers Association) (1964).
33. See ch. 7 of The Politics of Protest, supra note 10.
308 Report of the Task Force on Law and Law Enforcement
34. See Rights in Conflict, supra note 24.
35. The proper role of the police in mass political confrontations is dealt
with more extensively in ch. 16, infra.
36. See, generally, Edwards, The Police On The Urban Frontier (1967) ;
One Year Later (Washington, D.C.: Urban America, Inc., and The
Urban Coalition, 1969) ; Reiss, "Police Brutality- Answer to Key
Questions," Transaction, July/Aug. 1, 1968, at 10.
37. Terris, supra note 3, at 58 and 64.
38. See any of several articles on this subject by Prof. Samuel G. Chapman.
39. "Training Cops in Covina," Capital East Gazette, Feb. 1969, vol. 3,
No. 2, at 10, 12.
40. E.g., the proposal of Washington, D.C., Black United Front concern-
ing neighborhood control of police.
41. These remarks were recorded during a staff interview.
42. Not infrequently a decision by the policeman not to intervene is the
wiser choice, particularly in situations where the police have not been
called and where upon arriving at the scene the policeman sees that
there is no real trouble brewing.
43. Wilson, Varieties of Police Behavior, supra note 3, at 291.
44. James Q. Wilson, Dilemmas of Police Administration," Public Admin-
istration Review, SeptyOct. 1 1968, at 407, 412, 413.
45. See testimony of Patrick V. Murphy, before the Violence Commission,
Oct. 30, 1968; Sullivan, "Violence, Like Charity Begins at Home,"
New York Times Magazine, Nov. 24, 1968; and Bard, "latrogenic
Violence", statement submitted to this Task Force, Oct. 4, 1968.
46. Wilson, Varieties of Police Behavicr, supra note 3, at 291.
CHAPTER 15
OFFICIAL RESPONSES TO MASS DISORDER
I: CURRENT SOCIAL CONTROL*
Recent civil disorders have created a crisis for Americans.
They also created a crisis for the police and supporting control
forces, who, in general, found themselves ill-prepared, inade-
quately trained, and poorly equipped to cope with mass lawless-
ness.
MAJOR PROBLEMS OF RIOT CONTROL
Unlike the disturbances and violence of past riots, the civil di-
orders of the 1960's have created control and community problems
not mentioned in the standard police riot control manuals. Ac-
cording to the Guidelines for Civil Disorders and Mobilization
Planning, which the U.S. Department of Justice made available to
U.S. law enforcement agencies recently :
The riot situations experienced, particularly in the large
cities, have taken on a different form and dimension from
that which has been described in the most current police
literature on How to Control a Riot. Thus, the textbook riot
has not occurred to any great degree, and the textbook con-
trol measures have thus proven unusable.
The instant nature of the neighborhood riot makes the new dis-
orders a particularly difficult control problem. In every major
city with a large minority population, the underlying tensions
that exist today constitute an ever-present explosive environment
for civil disorder. The attendant violence and destruction outrace
the capability of the public safety forces to respond in the time
and with the strength required.
* This chapter was prepared by Joseph R. Sahid on the basis of research
contributions by Arnold Sagalyn, Senior Staff associate, Arthur D. Little,
Inc., and Louise Sagalyn, District of Columbia Bar; Albert Bottoms of
Chicago; and Gustav Rath, Professor of Industrial Engineering and Director
of the Design Center, Technological Institute, Northwestern University;
and Richard J. Kendall, Associate, Shaw, Pittman, Potts, Trowbridge, and
Madden, Washington, D.C.
309
310 Report of the Task Force on Law and Law Enforcement
This fact is particularly true with respect to the black communi-
ties, with their extremely high density and disproportionate num-
ber of youths who feel a deep hostility to the police. In such a
setting, an otherwise routine incident, particularly one involving
the police, can easily attract a large crowd. In the tension and
hostility thus created, any spark, like an inciting rumor, can
ignite a serious riot. By the time the police can respond to the
disturbance, the situation has often escalated beyond their capa-
bility to control it.
Moreover, the indigenous nature of the mob and the densely
populated character of the neighborhood make futile the tradi-
tional riot squad formations and tactics for dispersing crowds.
The rioters and on-lookers merely retreat inside the neighborhood
buildings only to reappear once the control forces have passed by.
No single control problem that confronts a city when a riot
erupts therefore, can become more serious than that of insufficient
police on hand to appropriately and effectively control a riot that
erupts without warning and involves a large number of people.
Nearly 75 percent of all cities over 100,000 population, for exam-
ple, have less than 500 policemen. Only 19 cities have 1,000 or
more.
The multitude of duties and responsibilities assigned to the
police force requires the allocation of personnel for a wide variety
of patrol, traffic, detective, administrative, and support duties. The
need to divide the police force into three shifts to provide pro-
tective and other assorted police services 24 hours a day, 365
days a year, with provision for days off, sick leave, and vacation
further depletes the total available strength. As a result of all
these factors, only slightly more than 10 percent of a uniformed
police force will normally be on street duty during any given shift.
As the report of the National Advisory Commission on Civil
Disorders noted, a city of 500,000 population is likely to have
less than 100 uniformed policemen on duty at any given time,
while a city of 100,000 population will not even have 25 men to
police the entire city. Moreover, since this force widely disperses
over many square miles, not all of these will be immediately avail-
able nor capable of getting to the scene rapidly. In addition, a
police administrator has to consider the risks and dangers to the
rest of the community if the demands of controlling a disorder
leave other parts of the city unprotected.
Mobilizing off-duty policemen becomes a time-consuming prob-
lem, averaging between an hour and a half to two hours for most
large cities. Yet, civil disorder, like a fire, can rapidly grow out
of control unless it is dealt with quickly in the very early stage.
During the first minute of a disorder, a hundred well trained and
commanded policemen can often prove more important and effec-
tive than one thousand men a few hours later.
Official Responses to Mass Disorder 311
Unfortunately, no outside available reserves exist for most
cities to call on quickly enough to control a large disorder at its
incipient stage. Mutual assistance pacts do not exist in most
states. Moreover, few mayors would release many police per-
sonnel to assist other cities because they might be needed in their
own community.
Nor can the local police turn to state police forces to provide
manpower in sufficient numbers and in the quick response time
required. Existing state police forces lack the strength, training,
and organization to provide local communities with the kind of
riot control assistance needed. Of the 49 states that have state
police forces, 28 have less than 500 policemen in the entire state.
Only 7 states have more than 1,000 men. More than half of the
states have essentially highway patrolmen who are widely dis-
persed to patrol thousands of miles of state roads. As a result,
they cannot be readily mobilized and quickly deployed to the
cities where they may be needed in the event of an emergency.
The problem of reserves for riot control is not solved by Na-
tional Guard units which are ill-suited and untrained to serve as
effective or practical riot control forces except on a very infre-
quent and emergency basis. The part-time nature of Guard per-
sonnel means that if they are called up more than a few times
during a short interval, or if they are called into service to serve
for an extended period of time, the men and officers face financial
hardships and risk jeopardizing their regular civilian employ-
ment. Thus, frequent use of the National Guard would make it
difficult for the Guard to retain and recruit personnel.
It is even more unrealistic to look to Federal troops to deal with
urban riots. Rigid constitutional and related restrictions rule out
the use of Federal forces to assist a community except as a last
resort after the state has exhausted all its resources.
Consequently, few police departments can take effective action
against rioters when a large-scale disorder first breaks out.
Pending the arrival of sufficient forces, the inadequate number of
policemen available cannot stop the rioting and arrest looters and
others who are violating the law.
The need to stop looting, arson, and other acts of destructive
violence has focused increasing attention on the importance of
non-lethal weapons and techniques which will enable the avail-
able police to suppress and arrest those violating the law and to
disperse the crowd or mob. Traditional police weapons, including
the stick and the gun, provide either too little or too much physical
force to control a riot effectively and judiciously. Given the inade-
quate manpower of police departments in a mass disorder, new
control tools become critical for police to curb lawlessness and
violence quickly and successfully.
Another major problem inherent in the normal operations and
312 Report of the Task Force on Law and Law Enforcement
training of a municipal police department is the individual police
officer. Having broad discretionary powers regarding the methods
he chooses to handle the wide variety of law enforcement tasks
he encounters, he is trained to exercise his own independent
judgment with a minimum of supervision.
Effective riot control, however, requires manpower organized
and trained to operate as members of a highly disciplined team,
similar to a military unit. Control personnel must not exercise
individual judgment or initiative but should act in strict accord-
ance with the orders of their commanders.
As James Q. Wilson has observed :
Those police departments that have, by their actions, ex-
acerbated tensions or failed to maintain order might be said
to be those that have failed to recognize the radical difference
between their normal duties and those they are called upon
to perform in critical events. The desire of an individual
officer to assert his personal authority may be inevitable and
perhaps desirable in patrol situations; it can be disastrous
in a mass deployment of police when discipline and con-
certed action are necessary. 1
A police department, therefore, faces formidable organizational
and operational problems in trying to shift suddenly from its
regular stance into an entirely new and different type of control
body required in a riot emergency.
A major weakness of many police departments is the absence of
a reliable intelligence system. The absence has gravely handi-
capped police and public officials in anticipating and preventing
trouble, and in minimizing and controlling a disorder that has
broken out. In large part, this happens because of a failure to
learn about and to understand neighborhood problems and griev-
ances and to develop reliable information concerning community
organizations and leaders. Related to this problem is the need
for a reliable mechanism to monitor, to collect and to evaluate
rumors and also the need for an effective program to counter false
and provocative rumors which can aggravate tension and incite
violence.
Another major problem is police communications. The shortage
of needed radio frequencies, cited by both the Crime and Civil
Disorders Commissions, and the inadequate present communica-
tions equipment essential to insuring effective command and con-
trol over field forces during a disorder, still remain as a critical
issue.
But no problem is more acute than that of training. A survey
of riot control training in a selected sample of major police
departments made for the Civil Disorders Commission disclosed
that of all police control capabilities studied, training constituted
Official Responses to Mass Disorder 313
the "most critical deficiency of all." Although many police de-
partments have recognized the need for more training and have
increased their training programs, the amount of training which
most police forces have received remains very short from that
needed to insure a professional riot control capability.
These, then, are the major problems facing control forces in
subduing mass disorders. The Kerner Commission took note of all
of them and made recommendations to deal with most of them.
While most cities appear to have strengthened their civil disorder
capabilities to varying degrees, serious deficiencies, unfortunately,
still remain.
CIVIL DISORDERS COMMISSION RECOMMENDATIONS
The best and most obvious approach to a civil disorder, the
Kerner Commission concluded, was that of prevention. Public
officials, principally mayors and police administrators, were
urged to do everything possible to prevent a disorder from oc-
curring in the first place.
The Commission urged officials to reexamine and rectify police
conduct, operations, and practices that lead to harassing and
contribute to or create community tensions and hostility. As
studies made for that Commission showed, inadequate police pro-
tection and a belief that a dual standard of law enforcement
existed constituted major grievances by minority residents. "The
abrasive relationship between the police and the minority com-
munities, the Commission concluded, has been a major and
explosive source of grievance, tension and disorder." 2 A de-
crease in hostility and improved police-community relations re-
sulted from the establishment of an effective grievance mechanism
which would cover other municipal services as well as the police,
and the issuance and implementation of policy guidelines which
would guide police officers in those sensitive areas where police
conduct may create tension and precipitate a disorder.
Both the police and the community, the Commission also con-
cluded, would benefit from greater police involvement in com-
munity service matters. Such community service functions would
enable police officers to identify problems that could lead to dis-
order. In the view of the Commission, the performance of such
duties would earn the police community respect and support. An
additional benefit directly accruing to the police would flow
from the development of invaluable sources of information and
intelligence.
In another riot prevention measure, the Commission endorsed
the recommendations made by the President's Crime Commission
for the establishment of a community service officer program to
attract neighborhood youths between the ages of 17 and 21. As
314 Report of the Task Force on Law and Law Enforcement
junior police officers, they could perform a variety of duties short
of exercising full law enforcement functions and could help to
establish needed channels of communication with minority com-
munities.
The Civil Disorders Commission also stressed the importance of
expanding and strengthening special community relations and
training programs designed to increase communications and de-
crease hostility between the police department and Negro resi-
dents. Concurrently, the Commission pointed to the particularly
critical need for making police department award systems recog-
nize the work of officers who improve relations with alienated
members of the community.
It also urged the assignment to ghetto areas of seasoned, well-
trained policemen and supervisory officers who could prevent and
minimize tension situations leading to a riot.
In the event prevention failed and a disorder erupted, it urged
the police to respond with sufficient speed and strength to insure
that they handled the incident properly and contained it quickly.
Studies made by the Civil Disorders Commission led to the con-
clusion that the way the police and the community responded to
the initial incident usually determined whether the disturbance
remained a relatively minor police problem or developed into a
serious disorder.
The ability of the police to deal with the initial incident, it was
found, depended on several key factors : the accurate assessment
of the incident and the nature and degree of control required ; the
speed with which sufficient police manpower arrived ; the proper
deployment and decisive use of the force, which required seasoned
commanders to direct and to insure discipline over the field per-
sonnel ; and, good intelligence, with the capability to utilize it for
decision-making.
To insure that a police department could deal with such emerg-
ency problems successfully, the Commission recommended that
every police department develop and pretest plans which would
quickly muster the manpower and seasoned senior commanders
needed at the scene of the disorder. Proper planning would
provide not only for the rapid deployment of on-duty personnel,
but would also make provision for the call-up of off-duty police
and for their logistical support; alerting and coordinating the
operations of municipal and outside agencies involved in the con-
trol of a disorder, and anticipating the numerous operations and
tactical requirements that would arise.
In the event the initial incident escalated into a riot, the police
department must make a rapid transition from its normal opera-
tions into a different type of organization with new operational
procedures designed and geared to meet the special emergency
mass control problems. Here again, good planning was para-
Official Responses to Mass Disorder 315
mount. To assist police administrators in this crucial riot control
requirement, the Commission recommended that model mobiliza-
tion and operations plans, which had been prepared by its staff,
should be updated and disseminated by the U.S. Department of
Justice to local and state police departments.
The Commission urged immediate and priority attention for
riot control training :
Departments should immediately allocate whatever time
is necessary to reach an effective level of riot control capa-
bility. . . . Training must include all levels of personnel . . .
and must be a continuous process for all personnel. . . . Riot
control training must be provided to groups expected to func-
tion as teams during actual riot conditions. . . . Mayors and
other civil officials must recognize the need and accept the
responsibility for initiating regional training and coordina-
tion with military and state police personnel. . . . Police
agencies must review and become familiar with recent riot
experience so that training programs can be realistically
adjusted in the light of anticipated problems. . . . 3
Because of the urgency of this problem, the Commission wrote the
President on October 7, 1967, recommending that the Department
of Justice conduct "a series of intensive training conferences this
winter for governmental and police officials." In its report to the
President in March, 1968, the Commission enunciated a long list
of training recommendations for improving riot control training
for all levels of police personnel.
The Kerner Commission also urged the establishment of a
national center and clearinghouse "to develop, evaluate and dis-
seminate riot prevention and control data and information."
In pointing to the grave danger of overreaction by the police,
the Commission stressed the importance of adhering to the well-
established legal and moral principle that only the minimum
amount of force necessary be used to control a disorder and to
maintain order. The use of indiscriminate, mass destructive
weapons, such as automatic rifles and machine guns, was specifi-
cally denounced as unwarranted and counterproductive.
The Commission advocated that police forces follow the example
of the U.S. Army and use nonlethal chemical agents, especially
CS, instead of deadly weapons. It further recommended that the
federal government undertake a program to test and evaluate
non-lethal weapons and related control equipment for use by
the police, and that it develop appropriate riot control tools and
material.
Another major finding of the Commission revealed that "civil
disorders are fundamental governmental problems, not simply
police problems." Accordingly, it recommended that "the mayor,
316 Report of the Task Force on Law and Law Enforcement
as the chief elected official, [must] take ultimate responsibility for
all governmental actions in times of disorder." In seeking to re-
store order, it urged the police to recognize and to utilize the
forces for order that exist within the community.
It also emphasized the importance of insuring greater coordina-
tion of all government agencies involved in control problems, in-
cluding the pretesting of plans.
PROGRESS SINCE CIVIL DISORDERS
COMMISSION REPORT
Since the Civil Disorders Commission made its report in
March, 1968, most major police departments have made marked
progress in strengthening their riot control capabilities. Planning
has improved, as has intelligence. The assignment of more sea-
soned and better-trained personnel to respond to the all-important
initial incident, greater attention to effective command and con-
trol of field personnel, utilization of neighborhood leadership and
resources to help prevent and control disturbances and the use
of only the minimum amount of force necessary all exist now
in greater evidence than formerly.
The improvement has been notable and national in scope. Prog-
ress has resulted from programs such as the series of fourteen
one-week conferences on the Prevention and Control of Civil Dis-
orders sponsored jointly by the Department of Justice and the
International Association of Chiefs of Police, as a result of recom-
mendations made by the Civil Disorders Commission to the Presi-
dent. More than 400 mayors, city managers, and police officials
from the nation's 136 largest cities, focused attention on the major
problems and lessons learned from previous riots. The conferences
proved decisive in disseminating the teachings of the Civil Dis-
orders Commission to local officials, enabling them to upgrade the
effectiveness of thier official response. 4
To strengthen Federal intelligence capabilities, the Department
of Justice established a Civil Disorder Intelligence Unit to com-
pile and computerize information from Federal investigative and
other sources relating to civil disorders.
For its part, the Department of Defense implemented meas-
ures to assist local and state governments in civil disorder plan-
ning and to improve the Federal military and National Guard
response to civil disorder. The Army Military Police School con-
ducted special riot control planning and training courses for
local and state police officials. Army representatives reviewed
civil disorder plans in a large number of cities to insure effective
coordination with respect to the local, state, and federal plans. The
Department of Defense also created a Civil Disturbance Director-
Official Responses to Mass Disorder 317
ate in the Pentagon with over-all responsibility for military riot
control activities.
Another significant development was the recognition and
demonstration of non-lethal riot control agents in dispersing
rioters and preventing looting. When severe rioting broke out in
Washington, B.C., in April 1968, the police employed the chemical
agent CS, in lieu of deadly firearms, to restore order; its effect
on rioters was described by one policeman as "phenomenal." It
strongly deterred those exposed to this non-lethal control agent
from any activity which would risk another dose. It was so effec-
tive, some police officers reported, that if they merely tossed an
ordinary beer can, which resembled a CS container, the crowd
would quickly scatter. The mere dropping of CS inside a store that
had been broken into immediately deterred future rioters from
entering.
In a letter sent to heads of major law enforcement agencies
during the summer of 1968 (Aug. 12), Attorney General Ramsey
Clark wrote :
Although they are not universally adaptable to all police
uses, nonlethal chemical agents represent the best immediate
alternative to the use of deadly force or no force at all.
They are now proven to be the most effective, safest, and
most humane method of mob control. Used with caution
when the need arises, they will reduce death, physical injury
and property loss to a minimum.
The Department of Justice currently sponsors a technical as-
sistance program, under the direction of the International Asso-
ciation of Chiefs of Police, to assist police departments in develop-
ing a more effective chemical agent capability. The IACP has
already prepared and disseminated to police departments in-
formation material on CS, including its characteristics, uses, pre-
cautions, and the problems of first aid and decontamination.
The valuable lessons learned from the Commission report, from
the disorder prevention training conferences, and from the vari-
ous Army support programs, were reflected in the responsible
and effective response by communities affected by the assassina-
tion of Dr. Martin Luther King. Despite the explosive climate
and the aggravated tensions generated by the assassination, only
a handful of cities suffered serious disorders.
The experience during the summer of 1968 was equally dra-
matic and encouraging. Despite fearful predictions of a tremend-
ous increase in the number and severity of civil disorders, there
was a clear and significant drop. The Civil Disturbance Informa-
tion Unit of the Department of Justice recorded 19 deaths result-
ing from civil disturbances during June, July, and August of 1968,
compared with 87 during the same period the previous year.
318 Report of the Task Force on Law and Law Enforcement
The National Guard was called in for assistance 6 times during
the summer of 1968 compared with 18 during the summer of 1967.
The number of disturbances listed as major or serious by the
Information Unit was 25 compared with 45 the previous summer. 5
In assessing the relatively peaceful summer of 1968, Attorney
General Clark praised the police as deserving a major share of
the credit.
There were many reasons to believe that the summer of
1968 would be the worst in our history. In the Spring, most
observers thought so. Yet there was a clear and significant
decline in the number and severity of riots and disorders
this summer.
There are many reasons for the improvement this year.
In my opinion, the police are entitled to much of the credit.
Despite the springtime publicity indicating otherwise,
the police response was generally not based on massive re-
pressiveness. When violent outbreaks occurred, they were
usually controlled by adequate police manpower trained to
neither overact or underact. It is impossible to count the
number of riots that were prevented by police. I believe they
were many. 6
Despite these decided improvements, critical deficiencies still
exist. Lack of effective operational planning, manpower short-
ages, communication problems, and the ever-increasing threat of
extremist activity among political and racial groupings and
within law enforcement agencies, all still represent significant
problems.
THE NATIONAL GUARD
The Civil Disorders Commission found repeated instances of
sub-standard performance by the National Guard during the
1967 civil disorders. Like police forces, National Guard units had
found themselves unprepared to handle the urban disorder that
erupted. They had not pre-planned, they had little training for
riot control, and they had poor leadership.
Like police departments, Guard units have seldom been ex-
pected to respond to civil disorders as a primary mission. Since
World War II, the National Guard's primary responsibility has
been to provide organized units of trained personnel with suffi-
cient and suitable equipment to augment the federal active Army
and Air Force in time of war or national emergency. While the
National Guard is nominally under the control of state governors,
the federal government has priority over its use and pays for
90 percent of its operating costs, provides virtually all of its
equipment and nearly half the cost of its physical installations
and facilities.
Official Responses to Mass Disorder 319
Furthermore, the federal government, through the Department
of Defense, prescribes in minute detail the training National
Guardsmen shall receive. Because of this, the National Guard's
state mission, which is to support civil authority, was virtually
disregarded in training policy prior to 1967. 7
Nevertheless, the Guard provided a force better prepared in
1967 to deal with civil disturbance than metropolitan police
departments. The active Army had trained virtually all Guards-
men for at least two months in basic combat skills and for
2 to 4 months in more technical military training. This emphasis
on discipline and unit control proved useful on the streets of our
cities. Futhermore, National Guard officers had for the most
part met the standards set by the Department of Defense for
officers on active duty.
As the Civil Disorders Commission indicated, the Guard ap-
parently needed an increased emphasis on their state function as
a force for the control of civil disorder.
This role was recognized in a January 1969 report prepared
by the Department of Army, under the signature of Robert E.
Jordan III, General Counsel.
The disorder that occurred in Detroit in July 1967, may
be considered an important landmark: i.e., from this point
forward the military services, in concert with many agencies
of government at all levels, devoted time, effort, and means of
an unprecedented scale to prepare to deal effctively with out-
breaks of mass violence. The results have clearly been worth
the effort. Due to increased training emphasis, more thor-
ough planning, more effective assignment of responsibilities
and streamlined operational procedures, the response of the
National Guard and federal forces to civil disturbances dur-
ing 1968 was rapid, effective and decisive.
The Army made a hasty revision of its training doctrine in riot
control and made it available to the Adjutant General of each
state after the Detroit riots. At the same time, the National
Guard in many states started to revise their training efforts,
based on events in Newark and Detroit, so that those units
scheduled for annual field training during August could key their
training to the characteristics of recent riots.
On August 10, 1967, the National Guard Bureau initiated a 32-
hour program of revised intensive training for all National
Guard units to be completed by October 1, 1967. It gave a special
16-hour course to all officers in the same period. During the
spring and summer of 1968, all Army National Guard units con-
ducted refresher training, ranging from 4 to 33 hours per unit,
the amount being based on the potential for disorder in a given
community or state, and on the state Adjutant General's assess-
320 Report of the Task Force on Law and Law Enforcement
ment of need. Leadership courses were initiated, based on a
program developed by the Army at Fort Benning, Georgia. As
of January 15, 1969, more than 10,000 Army National Guard
officers had completed the course, aimed at preparing junior
officers for leadership in civil disturbance duties. The Army also
initiated a course in civil disturbance operations for senior mili-
tary officers and police officials. To date, 772 high-ranking Na-
tional Guard officers have completed this course.
Since the National Guard is organized as a military force,
integral planning staffs exist at all levels. All states have senior
officers who are graduates of the Army's Command and General
Staff School at Fort Leavenworth, Kansas. This training consti-
tutes a considerable asset, not presently available to police depart-
ments, and apparently enabled the Guard to rectify planning
deficiencies noted by the Civil Disorders Commission. The Depart-
ment of the Army and the National Guard presently have detailed
and up-to-date civil disturbance plans a notable and commend-
able response to a national need.
The National Guard in each state developed state, area, and city
plans using Army-furnished planning packets. It has developed
contingency plans and coordinated planning with Federal, state,
and local officials. But police departments are slow to initiate com-
plementary plans ; this reluctance has resulted in unnecessary
problems during actual riot control operations.
The National Guard plans for alerting and mobilizing their
troops were reviewed and revised, and procedures were enacted to
insure continual revision. As a result, the time required to as-
semble units has been shortened. Further, the Guard has recog-
nized the value of testing its plans through command post and
field training exercises, and they have had considerable chance
to improve their plans following actual operations in 1968.
An expanded effort to increase Negro membership in the
National Guard became a top priority program following the
1967 disorders. The exclusion of Negroes from National Guard
membership had not been the official policy in any state,
and all states had regulations or laws aimed at maintaining an all-
white Guard had been rescinded or repealed prior to 1967.
In general, however, no real effort had been made to desegregate
National Guard units and those states that had programs had
produced negligible results.
Two significant steps were taken by the National Guard in
the period immediately following the Newark and Detroit riots.
First, the National Guard Bureau contracted for and received
an in-depth survey of Negro attitudes toward military serv-
ice in general and National Guard service in particular, to pro-
vide a factual basis for planning future recruiting efforts. Second,
Major General James F. Cant well, Commander of the New Jersey
Official Responses to Mass Disorder 321
National Guard and President of the National Guard Association
of the United States, proposed to the Department of the Army
that he be granted a 5 percent overage in the authorized strength
of the New Jersey Army and Air National Guard, to provide addi-
tional vacancies to be filled only by Negroes. He also requested
and received additional financial support and professional guid-
ance from the National Guard Bureau to conduct an intense pub-
licity, advertising, and promotion campaign aimed at qualified
young Negro men in New Jersey.
The New Jersey recruitment campaign became a pilot program
to guide the formulation of similar programs in other states. An
overstrength allocation of 865 spaces was granted. The program
began three weeks after the Detroit disorder and utilized a variety
of techniques, such as publicity through newspapers, radio, tele-
vision, billboards, handbills, and personal contacts. At the end of
ICM/i months, Negro membership in the New Jersey Army and
Air Guard stood at slightly more than 1,100, a gain for the period
of 767. At the beginning of the program 1.82 percent of the
17,265-man New Jersey National Guard was Negro. By July 1,
1968, Negro membership had climbed to 6.34 percent. 8
The success of this program must be qualified by the meager
results apparently experienced in other states which have re-
cently conducted similar campaigns without the benefit of federal
support. Plans are now being made, however, by the National
Guard Bureau to allocate additional funds for a nationwide ver-
sion of the New Jersey program.
The National Guard has attained a noteworthy level of effec-
tiveness in riot control operations within the last year. During the
same period, the Guard mobilized 25,000 individuals for active
duty in Vietnam and elsewhere and also underwent a substantial
reorganization of its troop structure, further taxing its resources.
Nevertheless, too many limitations have been placed upon the
National Guard to control outbreaks of civil disorder. One reason
for the Guard's effectiveness is that the hostility directed at
policemen by the diverse groups engaged in mass protest has not
yet been directed at the military forces. This reaction is a major
asset, but the danger of losing it is great, if the nation should
rely primarily on the National Guard for riot control. Further-
more, the National Guard composed for the most part of civilians
with occupations which compete strongly for their time and effort,
is limited by the number of times it can mobilize these men
without causing severe dislocation and hardship, and inevitably
lowering morale. Moreover, the Guard's ability to perform its
federal mission to support the active Army is lessened if the
states increasingly rely on Guard units to control civil disturb-
ances. 9
Some city and state authorities during the last year have ex-
322 Report of the Task Force on Law and Law Enforcement
hibited a tendency to overreact by requiring the Guard to assem-
ble prematurely or under circumstances where they are not
necessarily required. For example, according to figures released
by the National Guard Association of the United States on Janu-
ary 1, 1969, members of the District of Columbia Guard devoted
61 days to duty with the National Guard during 1968. In Wilming-
ton, Delaware, 75 National Guardsmen at any one time served
continuous nighttime riot patrol duty from April 17, 1968, until
January 20, 1969. Obviously few men with civilian occupations
and interests can continue this type of performance on a volun-
teer basis. The National Guard's function in riot control, there-
fore, must remain essentially that of supporting the local au-
thorities.
LOCAL LAW ENFORCEMENT AUTHORITIES
The knowledge needed to deal with civil disturbances is pres-
ently available to anyone who wishes to pursue it. The interest
generated by the problem itself and by the work of the Civil Dis-
orders Commission has led to the publication of several valuable
handbooks which outline in detail the proper official response to
mass disorder. 10 Yet local officials have been slow to adopt these
recommendations for several reasons.
While divided responsibility and staff organization character-
izes most large-scale business, civil, and military enterprises, few
police forces have yet to use such a structure. The demands of
immediate problems have forced police departments to operate
on a day-to-day basis with little time to devote to long-range
planning.
Moreover, police departments seldom employ outside consult-
ants to recommend long-range planning needs. Planning is more
often than not conducted by a few overworked higher ranking
police officials based on their own personal experiences.
Additionally, an acute shortage of funds to hire and train
men exists. While local and state governing bodies have been
quick to appropriate money for armored vehicles and other weap-
ons, many have not yet responded with adequate funds to establish
training schools or planning staffs.
The result of this lack of attention given to long-range planning
presents a disturbing profile of the readiness of our urban police
forces to deal with mass disorders.
A survey made of eight cities that experienced disorders fol-
lowing the assassination of Dr. Martin Luther King disclosed that
many deficiencies in planning and operations remained. 11 The
chief criticism made of some plans was that they lacked flexibility
and had not been subjected to needed pretesting. The failure of the
police call-up system to perform as provided in the mobilization
Official Responses to Mass Disorder 323
plan seriously impaired the effective emergency response of off-
duty personnel.
Studies by Bottoms and Rath of 16 major American cities 12
have shown that the present level of preparedness of our police
forces generally is not yet adequate to deal with civil disturbances.
As one might expect, the departments varied widely in their po-
tential ability to respond to civil disorder. The following deficien-
cies continue to plague many of our cities :
1. Generally, no formal, respected, dependable communication
links can be depended upon to remain open between dissident
groups and city authorities.
2. Generally, no formal, dependable lines of communication
exist among citizen groups, academic institutions, and agencies
of the state and federal governments.
3. Information needed for decisions in potentially dangerous
situations often fails to reach the executive level because of staff
bias or because of lack of proper interpretation.
4. In general, major American cities fail to provide the Mayor
or Executive Officer with effective planning staffs. Thus, hap-
hazard coordination and liaison exist among city departments
and with external agencies.
5. Confusion often exists concerning authority and command
responsibility. Fragmenation of jurisdiction in many metro-
politan areas exacerbates the problem. Many police do not rec-
ognize that they are under the direction of duly constituted civil
authority at all times. They also seem unaware that regular U.S.
Army troops are only under U.S. Army Command.
6. Planning for civil disorders in the police departments of
major American cities ranges from reliance on the kind of emer-
gency plans used in connection with fires or major sporting
events, to detailed tactical contingency plans developed for spe-
cific potential trouble spots in a city. In some cases existing
plans date as far back as five years, predating all recent sig-
nificant disturbances such as Watts, Detroit, Newark, and the
April disorders of 1968. In other cases, the plans intertwine
with various departmental regulations and manuals.
Contingency planning, except for plans developed for specific
areas or events, is almost nonexistent. The offered explanation
is that the uncertainty in the case of violent confrontation pre-
cludes meaningful detailed planning. The aspects of civil dis-
order planning most carefully covered are mobilization plans and
the establishment of police command relationships. Police de-
partments give least attention to strategy and tactics, defense
of vital installations, and coordination with agencies other than
police agencies.
7. Few police departments pretest existing emergency plans.
Thus, neither command nor street personnel know or understand
324 Report of the Task Force on Law and Law Enforcement
the content of plans and the requirements for execution. Un-
familiarity with plans and assignments can cause confusion,
wasteful allocation of scarce manpower, and responses that lack
relevance or timeliness in a given situation.
8. Although all police departments have conducted additional
training in riot control subjects, the number of hours devoted
to training each man within a given force has not increased sig-
nificantly. Some departments have, however, established special
civil distubance units and concentrated the majority of their riot
control training on this complement.
9. The importance of police organization for civil disorders ap-
pears to be imperfectly understood by the police. Few depart-
ments recognize that the unit replaces the individual when it
takes a military stance. Except for anti-sniper teams and mass
arrest processing teams, they make little use of task elements
composed of teams identified before an emergency arises.
10. Police departments conduct practically no unit training.
While a department may send occasional individuals to schools,
such as those operated by the U.S. Army at Fort Gordon or Fort
Ord, the only clear opportunity to give unit training to large
numbers of force members is at the police academies used to
train recruits. The pressure to provide uniformed policemen for
day-to-day duty has forced most police departments to rush men
through academy training rather than add a substantial amount
of unit-type training to the curriculum.
11. The police departments are having less difficulty procuring
special equipment to conduct riot control operations. This ac-
quisition is not necessarily heartening, however. Some of this
equipment is in the form of high-powered firearms and armored
vehicles which, as has been repeatedly stressed, have marginal
value in the orderly control of mass disturbances. Unless the
quality of training of the men who control this equipment is
significantly improved, the use of this equipment as a substitute
for more considered action may lead to unnecessary bloodshed.
12. Considerable discussion, concern and confusion exist for
developing police guidelines in the use of firearms, batons, non-
lethal chemicals, and the rules of engagement. These guidelines
encourage restraint and define for the individual policeman the
boundaries placed upon his actions, but the various riot control
groups have not yet been able to arrive at uniform policies with
respect to the use of firearms and non-lethal weaponry.
13. Many departments cited press relations as one of the most
significant problems they face. Yet few of them reported an in-
formation plan providing for press officers, briefing rooms, and
other special arrangements for dealing with the press during
riots.
14. Police departments must coordinate with the judicial sys-
Official Responses to Mass Disorder 325
tern regarding procedures and methods for dealing with prob-
lems of mass booking, detention, and transportation of prisoners.
In some cases, police departments have established peripheral
liaison with church groups, the ACLU, and bar associations, but
most of these programs are weak, sketchy, and ineffective.
Effective planning by police departments can help compensate
for the lack of preparedness which presently stems from practical
restraints placed on their ability to train for mass disturbance
control. This commitment to planning will require that police de-
partments develop planning staffs similar to those used by mili-
tary organizations at all levels. The use of the staff can give
commanders the opportunity to review their objectives, to con-
sider alternatives, and to analyze their resources through calm
consideration prior to actual commitment to riot control. A staff
organization and a detailed planning effort is fully within the
reach of most metropolitan police departments.
Training help is being made available through academic insti-
tutions and other organizations that specialize in operations re-
search and systems analysis. Furthermore, the Safe Streets Act
of 1968 provides federal assistance to cities and states in all
aspects of law enforcement. Other federal agencies and private
foundations have also begun to support research and development
in specialized areas on a large scale.
In conclusion, while most major American cities have begun
moving to implement the lessons learned from recent disorders,
much remains to be done. There can be no substitute for detailed
long-range planning, too frequently bypassed under the pressure
of immediate law enforcement needs. The knowledge needed to
upgrade the kind of official response required is available. What
is needed is a will to act and a will to provide needed resources.
THE ROLE OF THE PRIVATE INDIVIDUAL
In an emergency such as a serious riot, the regular police, fire,
and related community services quickly become overtaxed. The
civil government, primarily organized to respond to normal de-
mands on its services, finds its available protective capabilities
overwhelmed. The dangers to individual citizens and damage to
business establishments can be greatly minimized by both private
efforts and government-assisted programs to encourage certain
minimum and practical self-protection measures designed to
"harden the targets." Such precautions particularly apply to high-
risk businesses which have been the principal targets of the
rioters : i.e., liquor, hardware, appliance, food, and clothing stores.
By installing available protective devices, individual establish-
ments can with relatively little cost make it difficult for anyone to
burn or burgle their premises, measures which will provide valu-
326 Report of the Task Force on Law and Law Enforcement
able protection against normal crime hazards as well. Solid-type
barriers, for example, which roll down over store fronts to
prevent unauthorized entry of persons or repel fire bombs, have
long been a standard protective measure in France, Italy, and
other foreign countries.
A small inexpensive device, which screws into a light socket
and can be wired to discharge a harmless but highly deterrent
chemical (such as CS) if a window is broken or illegal entrance
is made, is also available as a protective measure against looting.
New types of shatterproof glass and glazing materials could
also provide a higher level of security.
The danger of arson can be greatly minimized by the installa-
tion of a water sprinkler or fire suppression system. Like the pro-
tective barrier, such fire protection would provide highly effective
year-round security for the businessman. The cooperation of in-
dustry and local government could make inexpensive suppression
systems feasible for small enterprises.
At the present time, small business establishments in high
crime and ghetto areas are having trouble obtaining or retaining
insurance. The installation of relatively inexpensive and effective
protective systems which would serve to safeguard these busi-
nesses against fire and burglary could prove a decisive factor in
helping to solve the insurance problem for small businesses.
THE PROBLEM OF MANPOWER AND
EFFECTIVE RESPONSE
Of the many civil disorder problems that remain unsolved, the
most pressing is the inadequate number of trained riot control
personnel.
This manpower problem arises principally from the constitu-
tional assignment of the police function to the states and the
system of decentralized, autonomous local law enforcement agen-
cies that has evolved in this country. Each city, in effect, must rely
on its own limited resources in maintaining order and in preserv-
ing the civil peace.
This kind of problem, perhaps to the surprise of Americans,
does not exist in other large countries. Unlike the United States,
most foreign countries have national centralized police forces.
They possess great manpower resources that enable them to
create specialized riot control units which number in the thous-
ands and are usually stationed in or near metropolitan areas.
Also, large contingents are kept on standby or quick-alert basis
for immediate dispatch in case of trouble.
These units, in turn, are supported by large numbers of mili-
tary troops who have been especially designated and trained for
riot control and who can be employed without the inhibiting con-
Official Responses to Mass Disorder 327
stitutional restrictions, among others, which limit the use of
Federal forces in this country.
The effectiveness of these foreign forces is greatly enhanced
by extensive specialized training in riot control. In many coun-
tries this training includes hundreds of hours in riot control
operations, tactics and equipment for all levels of personnel, as
well as exercises which test the planning and efficiency of the riot
control units. Periodic in-service training, as well as advanced
courses, are given to both the men and to their commanders.
Because of the quick availability of these large trained riot con-
trol reserves, other countries can control civil disorders effec-
tively. Nor can their success be attributed to their use of harsher
tactics, as the experiences of the British "bobbies" testifies. 13
The seriousness of the inadequate riot control reserves in this
country was clearly demonstrated in the April 1968 disorders. In
several of the states large demands for riot control personnel seri-
ously depleted the effective strength of the National Guard. On its
part, the Federal Government had to dispatch more than one-
third of the combat troops out of its strategic reserve. If future
disorders of a wider and more serious nature should develop, the
problem of providing endangered communities with sufficient
numbers of trained riot control manpower could become extremely
critical.
Needed riot control forces properly trained and equipped
must be made available to provide effective support and assistance
to any city in need of help, and these reserve forces must be found
without creating a national police force, which runs contrary to
American tradition and history.
One way to create the necessary riot control reserve forces is to
build on existing state police and highway patrol forces in the
United States. The state government has the basic responsibility
for maintaining order within the state and for assisting com-
munities when domestic violence overwhelms local capabilities.
Moreover, strengthening the state police forces and utilizing them
as a riot control reserve would avoid the problems of idle waste
and excessive aggressiveness inherent in a single-purpose riot
control force.
It would be appropriate and in the national interest for the
Federal Government to assist and contribute to the creation of
these additional state police forces. The needed personnel could be
funded quickly and in a way consistent with established federal-
state relationships, by following the precedent of the federal
highway programs under which the Federal Government now
provides billions of dollars annually to the states to construct
interstate and state highways.
This readily accesible uniformed force would enable the states
to provide the trained manpower needed to back up local police
328 Report of the Task Force on Law and Law Enforcement
forces in a civil disorder, and the program could provide these
patrolmen and their commanders with the specialized riot control
training and equipment essential to their effectiveness as highly
disciplined, coordinated riot control units. Support equipment
might include air and ground transportation and the communica-
tions equipment required in a disorder for the rapid mobilization
and effective command and control of these quick-response
reserves.
Eligibility for Federal grants would require the assignment
of these policemen to metropolitan areas to assure their ready
availability for emergencies. The deployment and response capa-
bilities of these state forces would be designed to enable the
governor to dispatch sizeable, effective units of trained riot con-
trol personnel within a matter of minutes to any city in trouble,
with additional support increments following rapidly. The Na-
tional Guard would still constitute an emergency reserve in the
event these combined forces proved insufficient.
At the present time, the Federal Government is spending some
$4Vs> billion annually in grants to states to build highways. The
same amount of money the Federal Government is now contribut-
ing to build just one mile of highway in a metropolitan area could
pay for the cost of 1,000 state policemen who would be available
to protect that metropolitan area in the event of domestic violence.
If ten percent of the Federal funds currently given the states
for highway construction were, allocated for these special state
police and were matched by the states it could create a riot
control reserve of approximately 60,000 men, twice the amount of
state police and highway patrolmen now available. Such state
forces would ensure each state a sizeable riot control reserve force
for every large city within its borders.
On their part, the states themselves receive more than $6 billion
annually from state highway-user revenues. Less than 10 percent
of this state revenue, however, is now spent on police and highway
safety programs. The use of a larger portion of these state high-
way revenues to support the state costs of adding additional high-
way patrol-riot control personnel would seem entirely justified for
such a vital state responsibility.
In addition to their protective function, these state forces
would be performing needed daily services, protecting lives and
preventing accidents on the metropolitan highways.
The assignment of these police forces to patrol the metropoli-
tan highway system would have the added benefit of freeing large
numbers of local police who must now perform this function. The
city of Los Angeles, for example, recently turned over the respon-
sibiltiy for policing the arterial highways within the city limits
to the California Highway Patrol, thereby making available large
Official Responses to Mass Disorder 329
numbers of Los Angeles officers for reassignment to local pro-
tection and to crime control responsibilities.
These new state forces could also serve as a riot control train-
ing and information resource for all local and county police forces.
Furthermore, they could serve as the nucleus needed to assist and
strengthen local police departments in their regular police work
in such areas as training, communications, records, laboratory
and related technical, special and supportive police services. Such
a role would enable the individual states to help fulfill their obli-
gations to provide local communities with the support they need
to combat local crime and to preserve the peace.
The creation of such a force in a particular locality depends
upon many factors. No single law enforcement concept will prop-
erly serve all areas. Nevertheless, given appropriate latitude to
encompass the many control problems in our nation, state police
and highway patrols so strengthened to cope with civil disorders,
would be a major step towards expanding the manpower capa-
bilities of our metropolitan police forces.
PUBLIC SAFETY RADIO COMMUNICATION
A principal command and control problem found by the Civil
Disorders Commission was the lack of emergency radio frequen-
cies available to police and fire departments during civil dis-
orders. 14
The Commission also found the coordination between neighbor-
ing police jurisdictions, fire departments and the National Guard
extremely difficult because of the lack of area-wide channels.
Incompatible frequencies and equipment prevented effective use
of men and equipment. To help relieve already overtaxed radio
frequencies, the Commission recommended that the Federal
Communication Commission "make sufficient frequencies avail-
able to police and related public safety services to meet the demon-
strated need for riot control and other emergency use/'
Innovations in land mobile radio technology, particularly in
the area of public safety communications, will demand increased
frequency space. The Joint Technical Advisory Committee
stated :
Apart from emergencies, the upward trend in crime, the
mobility of criminals, and the increasing concentration of
the population in urban areas make it essential to increase
the effectiveness of police communications. The tools for this
are already available, such as personal radio equipment to
provide continuous contact with each policeman, and visual
printout in patrol cars to increase accuracy and speed in re-
ceiving information, including that from computerized files.
330 Report of the Task Force on Law and Law Enforcement
To implement these tools fully, would again require addi-
tional channels. 15
Already in the marketplace are such recently developed com-
munications tools as the mobile teleprinter which will enable
police vehicles to receive printed messages over the air. As police
departments become integrated into statewide, computerized,
information systems, police use the radio channel between the
vehicle and the control center for direct access to data stored
in the memory files of the computer. Information regarding miss-
ing persons and automobile or firearm registration is obtained by
interrogation of the computer through the two-way radio control
station. The control station relays the computer's response to the
vehicle with the information printed out on the teleprinter.
To provide additional radio channels, on June 30, 1968, the
Federal Communications Commission reduced the channel width
of land mobile radio channels in the 450-470-MHz band to 25
KHz, and made 20 of the newly split channels available for assign-
ment to the police radio services. In many instances however, a
majority of the 20 channels were applied for by a single metro-
politan police department, leaving only a few channels to be
shared by a vast number of suburban police departments, county
sheriffs and state police networks.
CONCLUSION
The recent wave of urban disorders found law enforcement
agencies ill-trained, ill-equipped and ill-prepared to deal with
them. The Civil Disorders Commission noted these deficiencies
and proposed measures to upgrade the levels of preparedness and
response of these agencies. Since the Report of that Commission,
significant but uneven steps have been taken to implement those
recommendations.
Army and National Guard units now stand trained and ready to
deal with domestic upheavals. This rapid progress has been due
largely to effective staff organization, which proved capable of
long-range, detailed planning. The response of local law enforce-
ment agencies, however, has lagged. Two problems adequate
numbers of trained manpower and adequate communications
have yet to be solved.
REFERENCES
1. James Q. Wilson, Varieties of Police Behavior (Cambridge, Mass.
Harvard University Press, 1968), at 80.
2. National Advisory Commission on Civil Disorders, Report (New York:
Bantam Books, 1968). (Hereinafter cited as Kerner Report.)
Official Responses to Mass Disorder 331
3. Id., Supplement on Control of Disorder, at 490.
4. Urban America, Inc. and The Urban Coalition, One Year Later, An
Assessment of the Nation's Response to the Crisis Described by the
National Advisory Commission on Civil Disorders (Washington, D.C.:
Urban America, Inc. and The Urban Coalition, 1969), sec. II, at a, 4,
and 5.
5. According to Mr. Paul G. Bower, Special Assistant to the Deputy
Attorney General, the definitions used by the Justice Department were
less stringent than those used by the Civil Disorders Commission. "If
the Riot Commission definitions were applied to the 1968 disorders, we
would probably find only one or two disorders Cleveland, Miami that
would have been construed major by Commission standards, as com-
pared to eight major disorders in the summer of 1967. The apparent
increase in ... minor disorders is probably due to better reporting
rather than an actual increase in violence." Missouri Attorney Gen-
eral's Seminar. Lake of Ozarks, Mo., Oct. 4, 1968.
6. "Report by Attorney General Ramsey Clark," a statement issued by
the Office of the U.S. Attorney General, Washington, D.C., Oct. 3, 1968.
7. Statement of General Ralph E. Haines, Jr., then Vice Chief of Staff,
United States Army, before the 89th Conference of the National Guard
Association of the United States, Transcript of Proceedings 91 (Sept.
1967).
8. The National Guard Bureau, Report on the Final Evaluation of the
New Jersey Test Program (1968).
9. For example, Gen. James Woolnough, Commanding General, U.S.
Continental Army Command, in a speech before the 90th General
Conference of the National Guard Association, stated that he recog-
nized that the National Guard's 1968 field training for their federal
responsibiltiies had been less than an unqualified success. This he
felt was a result of "the disruptions to orderly planning which occurred
during the year."
10. As of the publication of this report, the single most authoritative source
is an International Association of Chiefs of Police Publication en-
titled Guidelines for Civil Disorder and Mobilization Planning (1968).
The IACP has also compiled publications entitled Model Civil Dis-
turbance Control Plan (1968) ; and Civil Disorders After-Action Report
(Mar .-Apr. 1968). See also Civil Disturbances and Disasters Depart-
ment of the Army Field Manual FM 19-15 (Mar. 1968) ; Operations
Report: Lessons Learned Report 5-67, Civil Disorders Task Force
Detroit, Commanding General, United States 5th Army; Federal
Bureau of Investigation, Prevention and Control of Mobs and Riots
(1967) ; D. Farmer, Civil Disorder Control: A Planning Program of
Municipal Coordination and Cooperation (Public Administration Serv-
ice, Chicago, 1968) ; Lesson Plan, Senior Officer Civil Disturbance
Orientation Course, Fort Gordon, Ga.
11. International Association of Chiefs of Police, Civil Disorders After
Action Report (Mar .-Apr., 1968).
12. Atlanta, Berkeley, Boston, Chicago, Cleveland, Dallas, Denver, Detroit,
Miami, New York, Oakland, Philadelphia, St. Louis, San Diego, San
Francisco, and Washington, D.C.
13. The following is taken from an article written in Feb. 1969 by David
Lancashire for the Associated Press entitled "The Bobbies' Way of
Handling Crowds":
Shouting slogans and waving anti- Vietnam placards, the demon-
strators smashed against the police line and tried to fight their way
through. The placards waved like sabres and police helmets flew
in the air.
332 Report of the Task Force on Law and Law Enforcement
The policeman in charge a sergeant in a sweatshirt and tennis
shoes looked delighted. "That's it demonstrators," he shouted,
"but try again, and harder."
The clash was at the London Police Recruit Training School,
where British bobbies study how to control riots like the explosive
demonstrations in Paris, Chicago, Berlin and London.
London police do it one way, and one way only: They link arms
and, by sheer numbers, hold back the crowd. The crowd in this
case was a cluster of police in plain clothes, providing practice
for fellow cadets in the linked-arms techniques.
London's men in blue have no tear gas, no water cannons and
no guns.
"We have no riot helmets or visors, either," says chief instructor
James Hargadon, a 40-year-old Scot who handles the training for
the capital's 20,000 man force.
"We don't think they are necessary, and if we did put on riot
helmets it might work the crowd up a bit, cause a spot of trouble."
British police, ever polite, refuse to comment on the violence in
Chicago or Paris, but they tend to look smug when they are asked
about it.
"We wouldn't consider such methods here," says Hargadon.
"We treat crowd control like cricket, or a soccer match. We try
to keep them from scoring."
When the last big demonstration erupted in London in October,
more than 30,000 protestors marched through the streets. Scotland
Yard assigned 8846 police to control the mobs. The forecasts pre-
dicted trouble but the "treat-'em-gently" tactics paid off.
When protestors threw coins at one cop, he laughed and asked
for bigger ones. When another bobby was hit by a flying pear, he
picked it up and ate it. At the end of the day there were 47 civilian
casualties, none of them seriously hurt.
And demonstrators and police who had 74 injuries sang a
chorus of Auld Lang Syne together outside the undamaged Ameri-
can Embassy, which the extremists had threatened to bomb.
14. Kerner Report, supra note 2, at 486-487.
15. Joint Technical Advisory Committee, Spectrum Engineering The Key
to Progress, a report on technical policies and procedures recommended
for increased spectrum utilization (New York: Institute of Electrical
and Electronics Engineers, Mar. 1968), at 12.
CHAPTER 16
OFFICIAL RESPONSES TO MASS DISORDERS
II: THE CIRCUIT OF VIOLENCE-
A TALE OF TWO CITIES*
"Force empowers its own adversaries. It raises up
its own opposition. It engenders its own destruc-
tion." i
While the statistics on civil disorders compiled by the Depart-
ment of Justice during the past year lend validity to the belief
that the earlier rash of riots may have subsided, new dangers
and control problems are developing to challenge the police and
the communities. They are manifested in terrorist attacks by
black extremists on policemen, such as the ambush and murders
in Cleveland, Ohio; and conversely, in the vigilante activity of
white extremists in a number of American communities. Con-
currently, we are witnessing the emergence of extremists within
the uniformed police who themselves are resorting to lawless-
ness, such as the off-duty police officers who physically assaulted
a group of Black Panthers in a New York City Courthouse, the
Oakland policeman who fired into a building housing a militant
organization, and the Detroit policeman who, following the
killing of a white policeman on the streets of Detroit, fired more
than 100 bullets into a church in which there were more than
140 Negro men, women and children.
Such incidents and the increasing bitterness and apprehension
they provoke on both sides could, if unchecked, create the poten-
tial for a new, and in many ways, far more dangerous type of
violence for this country. For we are witnessing an increasing
polarization in attitudes which breeds a citizenry incapable of
demanding the kind of official response appropriate to the prob-
lems which underlie such outbreaks. Largely as a result, those
minorities which do not have the power to mold official response
are becoming increasingly alienated from the larger community.
The dynamics of confrontation between large groups of people
* This chapter was prepared by Joseph R. Sahid.
333
334 Report of the Task Force on Law and Law Enforcement
and those in authority work in interesting ways. A polarization
in attitudes leads to escalation of the confrontation, breeding
more intense polarization which justifies further escalation in
the minds of the participants and the larger public. An exam-
ple of how this circular and cumulative causation phenomenon
has produced violent clashes in our nation's history is the
American labor movement, a subject more fully developed by
the History Task Force of this Commission. Another example
is the comparison of the official handling of the protest activities
which occurred in Chicago during the 1968 Democratic Con-
vention and the handling of similar protest activities in Wash-
ington, B.C., during the 1969 Presidential Inauguration.
The concepts discussed in this chapter are neither novel nor
overly complex. In one sense, they are the most fundamental
principles of crowd control, understood by observers at least as
ancient as Machiavelli. But fundamentals have a way of being
forgotten when emotional issues cloud man's rationality. For
that reason, we have attempted to re-state those fundamentals
using contemporary illustrations to reduce the abstractions to
meaningful realities.
THE DYNAMICS OF POLARIZATION
To many, the answer to violent unrest seems simple. When
blacks riot, when students demonstrate, when groups protest-
ing government policies organize potentially disruptive marches,
the government should retaliate with massive suppressive force.
Only by supporting law enforcement agencies and reducing
procedural obstacles to their efficient operation, they argue,
can order be restored.
The strength for this argument in our country was revealed
by the National Violence Commission Survey. Seventy-eight
percent of the people polled agreed with the statement, "Some
people don't understand anything but force." Fifty-six percent
agreed that "Any man who insults a policeman has no complaint
if he gets roughed up in return." Only 55 percent agreed with
the statement, "The police are wrong to beat up unarmed pro-
testors, even when these people are rude and call them names."
And 51 percent agreed that, "Justice may have been a little
rough-and-ready in the days of the Old West, but things worked
better than they do today with all the legal red tape."
While rough-and-ready justice may be appealing, there is
little evidence that more repressive police operations will sig-
nificantly decrease the level of violence in the country. Swift
and massive commitment of prudent and well trained law en-
forcement personnel can usually extinguish a civil disorder in
its incipiency, but the call for "law and order" does not stop
A Tale of Two Cities 335
here. Citizens have asked for something more that the police
be "unleashed" to deal with demonstrators and rioters as they
see fit, regardless of the long-run consequences of their actions.
At least two-thirds of white Americans believe that black fire-
bombers and looters should simply be shot down in the streets. 2
This view has become part of the folklore of the day, as an
examination of contemporary cartoons and comic strips, par-
ticularly Dick Tracy, Little Orphan Annie, and, in recent years,
Li'l Abner, will demonstrate. At a most unpropitious time, the
day after the assassination of Senator Robert F. Kennedy, the
author of Dick Tracy concluded the episode on the following
philosophical note: "Violence is golden, when it's used to put
down evil." 3
Policemen, themselves representative of the larger commu-
nity from which the cries for "law and order" emerge, have
found it increasingly difficult to close their ears to the public
clamor. Sensing correctly that an ever increasing percentage
of the population is willing to tolerate the use of any amount
of suppressive force to quell the clamor about them, some police-
men have fulfilled the wishes of these people by engaging in
terroristic attacks upon rioters and demonstrators in an unruly
and undisciplined use of brute force. Our Study Teams report-
ing on the disorders during the 1968 Democratic and Republican
Conventions and during the aftermath of the shootout in Cleve-
land, Ohio, July 23-28, 1968 (as well as the numerous other
instances referred to by our Task Force on the Violent Aspects
of Protest and Confrontation) have documented beyond doubt
incidents of unlawfully violent and otherwise suppressive con-
duct engaged in by numbers of policemen.
Reliance upon undisciplined law enforcement is self-defeat-
ing, however, since it adds to the magnitude and intensity ol"
disorders in progres and lays the groundwork for future and
more violent confrontation. Rather than succeeding in its in-
tended goal, which is to intimidate law breakers from further
violation, it merely succeeds in inflaming passions further and
drawing innocent bystanders into the web of violence. Once
this happens, those in authority are left with no alternative:
they must respond with even greater force to deal with increas-
ingly larger and angrier crowds of participants until a bloody
victory (if possible) is achieved. Professor Ted Gurr has force-
fully expressed this phenomenon :
The most fundamental human response to force is coun-
terforce. Force threatens and angers men, especially if
they believe it to be illicit or unjust. Threatened, they try
to defend themselves. Angered they want to retaliate. . . .
The presumption justifying counterforce is that it deters:
the greater a regime's capacity for force and the more
336 Report of the Task Force on Law and Law Enforcement
severe the sanctions it imposes on dissidents, the less vio-
lence they will do. This assumption is in many circum-
stances a self-defeating fallacy. If a regime responds to
the threat or use of force with greater force, its effects are
likely to be identical with the effects that dictated the regime
response: dissidents will resort to greater force. 4
Several factors contribute to the violence-escalating tendency
inherent in the use of sizeable police forces in situations of po-
tential or actual disorder. Many observers of police-citizen
interaction have noted the heightened tension and crisis atmos-
phere generated in an area where large and powerful groups
of law enforcement officers are deployed. 5 This kind of atmos-
phere was evident on the Columbia University campus during
the disorders which occurred during the Spring of 1968. Not
long after the dissident student groups succeeded in occupying
several of Columbia's major buildings and offices, the university
administration decided to mobilize a large complement of police
officers at various locations on the campus. Once the police
presence was apparent, a tense, crisis-like atmosphere pervaded
the campus, even though the police took no action for several
days afterward. Students erected more formidable barriers
within the occupied buildings in the hope of forestalling what
seemed like an imminent and massive police effort to dislodge
the students. 6
A similar crisis atmosphere was evident prior to the Demo-
cratic National Convention. Local officials in Chicago began
announcing weeks and even months before the Convention that
large-scale mobilization of police, National Guard and Army
troops would be undertaken to prepare for any outbreak of vio-
lence that might occur. Rarely a day passed without some aspect
of the mobilization receiving widespread publicity. Fences were
installed, barricades were erected and streets were closed off.
To some, the city of Chicago assumed the characteristics of an
armed camp preparing for war. The extensive and well-publi-
cized preparation coupled with the massive buildup of police,
troops and equipment could not fail to create an atmosphere
suggesting the ultimate inevitability of some mass disorder. 7
As another example, the Miami police department's importation
of police dogs and shotguns into the Miami ghetto was credited
by our study team investigating the disorders that engulfed
that city in 1968 with exacerbating the tensions that generated
the disorder.
Perhaps the most serious danger resulting from placing pri-
mary reliance on poorly restrained police forces to prevent and
control outbreaks of group disorder is the adverse effect such
reliance has on the attitudes of individuals and groups in our
society. This effect on attitudes manifests itself in two basically
A Tale of Two Cities 337
different but equally deleterious ways intimidation and polari-
zation.
In the crisis-like atmosphere generated by the announced
availability or actual deployment of a large police force which
has been mobilized to cope with potential group disorder, there
is a strong possibility that the average, law-abiding citizen will
be intimidated from participating in the group activity. Such
intimidation has a "chilling" effect on the exercise of First
Amendment rights in the areas of political, war, or social pro-
test.
Any individual who contemplates engaging in a group dem-
onstration of dissent or protest, regardless of how peaceful and
law-abiding he might be, must of necessity consider the possi-
bility that he might become involved in some type of group
disorder. When police forces are massed for such a demonstra-
tion and the public made well aware of the preparations, the
possibility of disorder becomes magnified. Although the most
dedicated and least fearful (and perhaps the most violence
prone) may decide to engage in the protest despite the con-
sequence, many others of a more peaceable disposition may
decide to forego participatig in an organized protest. A kind
of Gresham's Law operates, leaving the protest movement in
the hands of the more extreme participants.
The massive force martialed and flaunted prior to the Demo-
cratic National Convention no doubt discouraged a multitude
of respectable, law-abiding citizens from assembling en masse
to express their disagreement with the war in Vietnam and to
influence the convention on other matters of critical public im-
portance. And there are indications suggesting that the mobili-
zation of forces was dictated by a desire on the part of the
public officials to hold down the number of people engaging in
such protests. 8 While it is of course impossible to prove the
subjective motivations of those officials, the effect of their
actions was clear sizeable numbers of people were intimidated
into foregoing their constitutional rights. The gravity of that
occurrence should not be underestimated in a society founded
on the premise that all people have the right to speak freely
and assemble peacefully.
"All police are sadistic and brutal." "All demonstrators are
Communists and traitors." Opposing views such as these which
are widely held and vigorously espoused by diverse segments of
the public exemplify the phenomenon of attitude polarization.
Polarization occurs both during and after disorders and is mani-
fested in the attitudes of those involved in the disorder as well
as those not involved.
The origins of attitude polarization can be traced to the diffi-
culty of coordinating and controlling the actions of a large police
338 Report of the Task Force on Law and Law Enforcement
force deployed during a group disorder. Because of this diffi-
culty, it is often impossible to pinpoint and take remedial action
against those individual policemen who have engaged in indis-
criminate or illegal behavior. Much the same problem is evident
when individual members of a protest group engage in provoca-
tive or illegal behavior. This inability promptly to identify and
hold responsible those who have engaged in illegal activities
generates widespread feelings of bitterness and animosity in
one group towards the other. Generalities replace specifics, pas-
sion replaces reason, dogmatism replaces analysis. Thus, the
protestors tend to view all police as brutal, intemperate, and
unsympathetic because they have seen some police act this way.
And the police tend to view all protestors as communists or
trouble-makers because some protestors have engaged in pro-
vocative acts. The escalation of tactics leads to broader and
more intense polarization which in turn justifies further escala-
tion. To phrase it simply, "You hit me so I will hit you back."
Two recent surveys of public attitudes following the disturb-
ances at Columbia University in the spring of 1968 graphically
illustrate the extent to which attitudes can polarize after a large
police force is employed to control a group disorder. 9 One poll,
conducted for the Neiv York Times by Public Opinion Surveys,
Inc., of Princeton, N.J., surveyed 508 adults living in the greater
New York metropolitan area. 10 The other poll, conducted by
Allen H. Barton of the Bureau of Applied Social Research at
Columbia University, polled the entire university faculty and
one-fifth of the student body. 11 On the issue of the propriety of
the university's decision to call in the police, a sharp split in
attitude was apparent between the metropolitan area residents,
on the one hand, and the students and faculty on the other.
Whereas 83 percent of the metropolitan area residents favored
the decision to call in the police, 74 percent of Columbia stu-
dents favored using the police only under limited conditions or
not at all. Opposition to the use of police was most intense
among those most intimately associated with the disturbance,
the students. Support for the use of police was most intense
among those who were not college educated, and those over
forty years of age.
Once the attitudes of the police and the protest group begin
to diverge toward opposing extremes, the ability of both sides
to join in either preventing a potential disorder or curbing an
existing disorder is greatly impaired. Because of the growing
rigidity and polarity in the attitudes held by each group toward
the other, communication between the police and the protestors,
if it occurs at all, will be carried on in an atmosphere of mutual
distrust and suspicion. In such an atmosphere, discussions aimed
at achieving cooperation to insure that future group protests
A Tale of Two Cities 339
are conducted in an orderly fashion have little chance to succeed.
And in the midst of a disorder, discussions aimed at mutual
efforts to bring the disorder to an end become virtually impos-
sible.
The depth and intensity of the polarization in the attitudes
of the protestors and the police depends on the length and se-
verity of their confrontation. If the confrontation is severe and
the polarization intense, the original objective of the protest
groups becomes submerged, being replaced by demands and
complaints concerning police action. Although the transforma-
tion of objectives usually finds initial expression within the
protest groups, the emergent issue concerning police action
begins to attract widespread public attention. Within a short
period of time, the polarization between the attitudes of the
protest groups and the police is evident in the attitudes of pro-
protest and pro-police segments of the public as a whole. Wide-
spread coverage of the issue by the various communication
media draws more and more people into the controversy. At
some stage, public officials take sides on the propriety of police
conduct, impelled to do so because of the growing public clamor.
And the additional facts which are disseminated by means of
the communications media, investigatory bodies, white papers
and the like can often lend support to the divergent public atti-
tudes, add to the vigor with which the views are held, and
further intensify the preexisting polarization.
The consequences of this polarization are exhibited in various
forms. In a recent trial of three Chicago policemen charged
with unlawfully beating a reporter at the Democratic National
Convention, for example, the jury acquitted the policemen in the
face of overwhelming evidence of the officers' guilt. The presi-
dent of the Chicago Fraternal Order of Police probably reflected
the mood of the community and the jury when he commented:
We are absolutely elated over the not guilty verdict. It
proves beyond the shadow of a doubt that the lady of
justice is not blindfolded and that anarchy will not prevail
in our society. 12
Thus, the specter of "anarchy" proved more persuasive than
the individual guilt or innocence of the defendants.
When attitude polarization becomes reflected in the thinking
of large segments of people who are more or less unaffected by
a given disorder, more serious, long-range consequences arise.
With each succeeding group disorder, growing numbers of the
public will appear to be more vigorously in favor of resorting
to force as a solution to such outbreaks. As a consequence, with
each succeeding disorder, public officials will meet with less re-
sistance in adopting that solution. Those public officials who
340 Report of the Task Force on Law and Law Enforcement
believe attacking the causes and tensions which precipitate dis-
orders to be a more fruitful approach will be compelled to curtail
or abandon their efforts in the face of the public outcry for
swift and decisive police action. Gradually, a resort to over-
whelming police force will become an automatic response that
will further widen the gulf in attitudes, leave unresolved the
causes of the disorder, and increase the likelihood of future
disorders.
An even more alarming consequence which results from a
widespread polarization of attitudes is the growing isolation of
those who have either directly engaged in group disorders or
expressed sympathy with the goals of the participants. This
isolation develops in two stages, both of which are attributable
to the strained communications between the polarized groups,
a strain which becomes more pronounced as the divergence in
attitudes becomes more extreme. Initially, isolation is forced
on protestors and their sympathizers by the larger public.
Although those who are intimately associated with the disorders
are most eager and best able to identify the causes of unrest and
to propose creative, remedial measures, the larger public is un-
willing to listen, viewing the protestors as a threat to an orderly
and stable society. The increasing hostility of the general public
drives the protestors and their sympathizers to the second stage
of isolation. This stage is marked by the protest group's re-
jection of the existing political and social system as a vehicle
to effect change. When isolation develops to this extent, the
attendant polarization and hostility may become so intense as
to be irreconcilable.
Attitude polarization leading to an escalation of violence is
not difficult to understand. Supported by psychological teach-
ings, 13 the lesson seems clear force merely produces counter-
fo^ce.
The polarizing effect of suppressive force is not new to this
country. A review of the labor movement provides an out-
standing example.
CASE STUDY I: THE LABOR MOVEMENT
The American labor force did not begin to view itself as a
special interest group or even as a collective entity until the
Industrial Revolution compelled a sharper division between cap-
ital and labor. Economic expansion and technological advances
gave rise to the giant industrial corporation whose manage-
ment was increasingly remote and unresponsive to employee
needs. Marxist ideology, if it did not abet this process, sharpened
an awareness of it.
As the gap between labor and management widened, skilled
A Tale of Two Cities 341
workers and craftsmen in several industries adopted union forms
of organization to voice their requests more audibly. In the
first year following the Civil War, the leaders of several trade
unions and craft associations met in Baltimore to form the
National Labor Union, the first attempt to organize labor on a
scale comparable to that of industrial management.
The demands of the NLU were moderate: currency reform,
job security, formation of cooperatives, and most of all an eight-
hour work day. The tactics employed were peaceful and polit-
ical : legislative lobbying and campaigning for the enactment of
new laws.
As an instrument of political reform, the NLU proved in-
effective. Its campaigning yielded few results, either in electing
labor candidates to office or in securing legislation. The NLU
collapsed in the early 1870s, and in its place arose the Knights
of Labor, the prototype of the modern national labor organiza-
tion.
The Knights inherited the NLU's political reformist tenden-
cies, but put greater emphasis on the strike and on collective
bargaining as a means of pressing its demands. At first these
tactics were effective. A series of successful strikes won wage
increases and better working conditions, and these accomplish-
ments in turn caused the Knights of Labor to increase its mem-
bership from about 100,000 in 1881 to a peak of 700,000 in 1885.
These successful strikes, the rapid expansion of organized
labor, and increasing social unrest convinced industry that labor
unionism represented a dangerous revolutionary movement. In
support of this view, industry could cite a number of "revolts"
and "rebellions" among immigrant laborers who had spon-
taneously rioted on several occasions to protest starvation wages
and intolerable working conditions. It could cite the Molly
Maguires, a secret society of Irish immigrants who enforced their
demands for better wages and safer mines by terrorism in the
coalfields of Pennsylvania. In addition, the continuing immigra-
tion from Europe included a small but vociferous number of
anarchists, socialists, and other radicals who preached class
struggle and "propaganda of the deed."
While the organized labor movement was generally peaceful,
even timid, and sought to divorce itself from radical ideology,
industry viewed it as a threat not only to property interests but
to management's dominant position in the national economy.
The response to this threat was a campaign of harsh suppres-
sion, both tactical and strategic. Labor organizers were threat-
ened, beaten, or killed, and labor meetings were forcibly dis-
rupted by company guards and "goons." Strikes were broken
by professional strike-breaking agencies, with the aid of local
and state police. Resistance from strikers brought massive
342 Report of the Task Force on Law and Law Enforcement
reprisals, often from troops or state militia called in to protect
property and restore order.
The Knights of Labor, ineffectually led and structurally weak,
quickly succumbed to such pressures. But this oppression had
the effect of imbuing the movement with greater determination.
After the 1880's, labor leaders abandoned efforts to secure po-
litical reform, and turned to the strike as a principle instrument
for pressing their demands the foremost of which was the right
of labor to organize and bargain collectively.
In itself, the strike was a nonviolent instrument of change.
It frequently led to violence, however, the moment guards or
police attempted to disperse picket lines or escort strike-breakers
into the idle factories. Where industrialists were able to employ
sufficient force to break a strike completely, the jobless strikers
sometimes turned to offensive violence arming themselves and
laying siege to mines, factories, or the barracks of the guards,
or engaging in systematic terrorism that become long and
bloody "wars."
In almost every instance, labor violence stemmed directly
from the breaking of a strike or the suppression of union ac-
tivities. Sometimes it was sporadic and limited. In some cases
it was adopted as policy by particular unions or radical labor
groups on the grounds that lawful tactics were ineffective. No
national labor organization not even the militant and radical
IWW advocated the use of terrorism, and most deplored it.
Nevertheless, violence remained the hallmark of the American
labor movement from the 1870's through the 1930's. It did not
diminish to its present inconsequential level until the late 1930's,
when enforcement of the National Labor Relations Act of 1935
finally secured for labor the right to organize and bargain col-
lectively, and to employ the strike as an effective alternative to
violence.
The resort to force appears to occur in any sustained move-
ment that fails to make steady, measureable progress toward
its goals. It occurs less frequently as rational strategy for
change, however, than as a gesture of protest or as an expres-
sion of frustration. It appears to find acceptance only when
suppression precludes other forms of expression or when other
forms of expression appear to produce no meaningful response
or no concrete results.
These processes seem to be operating both on university
campuses and in the streets in connection with student protest
groups and the anti-war movement generally. After several
years of peaceful protest and demonstration, often in the face
of considerable harassment, the more militant groups have
evolved the strategy of "confrontation politics" designed to pro-
voke an unresponsive "establishment" into acts of brutality and
A Tale of Two Cities 343
suppression that dramatize the issues. Many officials have been
unable to deal effectively with this tactic when it has been em-
ployed on the streets and campuses of our nation. The result
has been an increase in the level and intensity of violence.
Two cities Washington and Chicago each recently experi-
enced two major demonstrations. In Chicago, anti-war activities
occurred on April 27, 1968, and at the Democratic National
Convention in August. The March on the Pentagon in October
1967 and the counter-inaugural activities in January 1969 oc-
cupied Washington authorities. These demonstrations were or-
ganized by many of the same groups and attended by many
of the same people. The Convention and the counter-inaugural
activities involved about the same number of protestors and
centered around major national events.
Yet the results of these events were markedly different. In
Chicago, large-scale violence marred both activities. The vio-
lence in Washington, on the other hand, was minimal. The
almost laboratory-like conditions afforded by the Democratic
Convention and Inaugural protest activities prompted us to ex-
amine these two demonstrations in detail. We have concluded
that the amount of violence that occurred during these demon-
strations was directly related to the type of official response that
greeted them. More specifically, repressive measures proved
self-defeating: when officials decided to "get tough," choas
rather than order resulted.
CASE STUDY II: CHICAGO AND WASHINGTON
A TALE OF TWO CITIES
(The following account is based primarily on reports pre-
pared for the Commission by the Chicago Convention and
the Washington Counter-Inaugural Study Teams.
The report on the disorders at the Democratic Conven-
vention prepared for this Commission by Daniel Walker,
especially the phrase "police riot," has been greeted by con-
troversy. We believe that critics have misunderstood the
significance of this phrase. It was expressly used in the
report only to describe the blatant misconduct and violence
by small bands of roving policemen in the parks and streets
of the city's north side on Sunday and Monday nights of
convention week. See Rights in Conflict at ix. It was not
used to describe the handling of the large crowds on the
climactic night of the Convention, which is described else-
where in the report. Unless this distinction is understood
the lesson of that report may go unnoticed.)
The National Mobilization Committee to End the War in Viet-
nam (MOBE) served as the primary organizing force which
344 Report of the Task Force on Law and Law Enforcement
brought together demonstrators for the activities both in Chi-
cago and in Washington. MOBE served as a loose coalition of
various local and national antiwar groups which, although au-
tonomous, looked to MOBE officials to secure permits and make
other logistic arrangements necessary to the success of a mass
demonstration.
A subsidiary role, although intensively publicized by the mass
media, was played by groups variously called "Hippies" and
"Yippies." Only peripherally interested in protesting the na-
tional events which called forth their participation, thev desired
to use both occasions to publicize their "alternative life style."
Their "Festivals of Life" were designed to show the nation's
youth that the "underground" was more than a myth.
Most participants did not desire confrontation in any form.
Many had come to protest peacefully their opposition to certain
current American policies, foremost of which was the War in
Vietnam. Others had come to participate in the festivities that
were expected, to make new friends, to hear the scheduled speak-
ers and entertainers, and generally to take part in the social
event that was expected.
Scattered throughout both these groupings of participants
were those who desired "confrontation" with the authorities.
Some believed that confrontation would occur without any un-
lawful or disruptive conduct on their own part, that their simple
presence would be enough to goad the authorities into attempt-
ing to suppress their right to dissent peacefully.
Others intended to provoke confrontation if necessary by ex-
citing policemen and officials by their conduct. This last group
was indeed small. No more than 100-200 people were com-
mitted to this philosophy at any time during either event.
Valuable insight into the personalities of the demonstrators
has been provided by Dr. Paul R. Miller, Assistant Professor
of Neurology and Psychiatry at Northwestern University Med-
ical School, 14 who polled those arrested during the Convention
disorders by means of questionnaires and interviews. His con-
clusions contrast sharply with descriptions of the demonstra-
tors given by the Chicago officials :
The "average" demonstrator was from Chicago or a state
adjacent to Illinois, a white male, 21 years old, who had
nearly completed his college education. His social class
origins were upper-middle or upper. Father was college
educated and was either a professional or a business execu-
tive. Mother had attended college without graduating and
was a housewife. The demonstrator was headed toward a
career in a service profession (teacher, clinical physician
or psychologist, social worker, minister). . . .
Social and Political Orientations . . . were sharply polar-
A Tale of Two Cities 345
ized. Almost unanimous support was given to the peace
movement (99 percent) and draft resistance (93 percent).
. . . Their closest political identity was with the "new Left"
(83 percent), a concept which was concretized most closely
in the person of Eugene McCarthy (supported by 66 per-
cent). . . .
The number who were for "communism" (18 percent)
and "anarchism" (34 percent) requires explanation. . . .
Certainly the usual American vision of a heavily bearded
wild-eyed anarchist carrying a bomb with a lighted fuse is
totally out of date with the demonstrators' concept. In-
stead, an anarchist is a person who opposes on principle the
established institutions of American society and has dropped
out of participation in most or all of them. Thus almost
all hippies are anarchists.
In regard to communists, one responder said that "quali-
fied National SDS calls themselves 'revolutionary commu-
nists.' I believe this concept of communism is beyond most
elected officials." Again the stereotyped American vision
of a group is out of touch with current concepts among
youths, who view communism as a social action movement
to change capitalism to state socialism, by revolution if
necessary, violent if necesary. Most youths despise Russian
communism and disdain the American communist party. . . .
[46 percent said they were against and 35 percent said they
were indifferent towards communism]. 15
Eighty percent denied [Mayor] Daley's contention that
the demonstrators were taken over by deviant groups. . . .
Most (73 percent) of the arrested demonstrators had
never been arrested before. Of the 27 percent who had, two-
thirds had been in connection with civil disobedience. . . .
The group attitude toward nonviolence is sharply di-
vided: half (49 percent) believe in it as a universally appli-
cable principle, one-fourth (27 percent) deny it, and another
one-fourth (24 percent) accept it under some conditions,
such as practicing it until one is violently attacked (and
then defending oneself). Others said that they accepted it
for themselves but would not insist that it be universally
applied to others. . . .
Perhaps if the question on nonviolence had been asked
before the convention, a higher proportion would have
answered yes. Thus: "Chicago was the first demonstration
I participated in. If I go to another and I am assulted [sic]
by a 'cop' again, I'm going to the next one armed. Their
[sic] were a large number of people in Chicago who felt
the same way. So if this treatment of demonstrators con-
tinues the forementioned revolution isn't very far off." . . .
346 Report of the Task Force on Law and Law Enforcement
At the time of their arrest, over half (55 percent) claim
they were attacked by the police. . . . Although the police
claimed that their violence was only in response to the
violence of the demonstrators, they charged only 10 percent
of the demonstrators with violent acts, while 55 percent of
the demonstrators charged the police with violent acts. . . .
The demonstrators were generally articulate about the
major social problems facing America today. . . .
To remedy the social problems, the majority recom-
mended conventional techniques: demonstrations (53 per-
cent), electoral activity (42 percent), community action
groups (30 percent) (some of a radical nature) and educa-
tion (29 percent). But two minorities ran in opposite di-
rections: revolution armed if necessary (21 percent) and
dropping out or doing your own individual thing (16 per-
cent). . . .
Intelligence reports for both events indicated that violence
and disruptive conduct was likely to occur. Some of this infor-
mation was absurd and simply the result of theatrics engaged
in by the demonstrators to gain publicity for their cause, like
the reported plans to contaminate Chicago's water supply with
LSD. 16 Other information was gathered from sources which
could not be regarded as reliable. 17
Chicago authorities lacked any mechanism for distinguishing
the serious from the ludicrous and unreliable. 18 As the Walker
report concluded, "the intelligence agencies apparently made
little effort to distinguish between the philosophies and intents
of various groups. They were concerned not with whether a
group advocated violence or adhered to nonviolent tenets, but
with the dangers inherent in large crowds of demonstrators,
regardless of whether all members espouse violence." 19 Im-
plementing the tightest security measures ever witnessed at a
national convention, no attempt was made to tailor those meas-
ures to the type of threat received nor to distinguish those who
were likely to engage in violence from those who presented no
threat. Thus, for example, the spectre of assassination was
advanced to justify the use of tear gas and mace to clear the
parks and streets of nonviolent demonstrators, including clergy-
men at prayer, even though no rational relationship between the
demonstrators' conduct and an assassination plot could possibly
be offered. This philosophy of "overkill" was to have serious
ramifications.
By contrast, Washington authorities carefully evaluated the
intelligence reports they received. As one high-ranking police
official expressed it, "An intelligence report is like beauty it
lies in the eye of the beholder." Individuals and groups who
were likely to engage in disruptive conduct were identified and
A Tale of Two Cities 347
watched closely. No attempt was made to interfere with the
great majority of the demonstrators who presented no threat.
Massive security measures were not flaunted in an attempt to
intimidate participants who had no desire to engage in a con-
frontation. As a result, the suggestion of an "armed camp"
prepared for battle never greeted the Washington protestors.
No massive publicity campaign regarding security ever detracted
from the major scheduled event.
Chicago authorities failed to make a real effort to reach an
understanding regarding permits to engage in peaceful demon-
strations requested by the demonstrators. They obstructed and
delayed the negotiations in an attempt to discourage the pro-
testors from engaging in their constitutional right to peaceably
assemble to petition the government for redress of their griev-
ances. 20 Among other tactics employed, they failed to answer
correspondence, refused to schedule timely meetings with the
proper officials, and imposed conditions which could not be ful-
filled (such as requiring that a $100,000 to $300,000 liability
bond be posted even though it was clear that no bonding com-
pany would issue such a bond). Their counteroffers to the dem-
onstrators, made under compulsion of law suits brought by the
protesting groups, came too late and offered too little.
Failure to engage in a meaningful dialogue with the pro-
testors had far-reaching consequences. Government officials
were denied the opportunity to determine the character of the
spokesmen for the protestors. This knowledge could have proved
helpful when the later difficulties began to unfold. The officials
had no opportunity to amass intelligence from the spokesmen
who could have pinpointed the difficulties they themselves were
having. There was also no way to discover what activities had
been planned by the protesting groups.
Refusal to grant a permit meant that for the most of the
time they were present, the demonstrators would have no focal
point to their activity. Random groups were thus forced to
remain random. This complicated the police function greatly.
Rather than being able to focus their surveillance on limited
numbers of mass gatherings, they were forced to spread them-
selves thinly over a large geographical area without the ability
to recognize leaders with whom they could communicate in the
event of an emergency.
The most serious result of the permit denial was to polarize
further the attitudes of the protestors and the larger commu-
nity. Angry at the denial of what they considered their right
to a permit, many demonstrators came to Chicago determined
to engage in their protest activities despite the absence of a
permit. They began regarding the city authorities as venal and
were determined to prove that they would not be intimidated
348 Report of the Task Force on Law and Law Enforcement
into foregoing what they considered was rightly theirs. Resist-
ance and obstacles made them even more eager to stage their
protest.
Some individuals and groups, however, succumbed to the pres-
sure and cancelled their plans to attend the protest. Although
this is exactly what city officials hoped to achieve, the plan back-
fired, for many members of the more staid and responsible
groups were the ones who were thus intimidated. This meant
that fewer responsible people were present to restrain their
less rational compatriots when the escalation began to take
place.
On the other side, denial of a permit signified to citizens and
police that the protest activities were illegitimate. They viewed
those who assembled as trouble-makers and law breakers rather
than as other citizens come to exercise their constitutional
rights. This polarization was to have significant consequences
as events unfolded.
Washington authorities, on the other hand, negotiated con-
scientiously and arrived at an agreement acceptable to both
sides. District of Columbia Deputy Mayor Thomas Fletcher
reflected the thinking of his city's administration when he said,
"We felt they were entitled to a permit." 21 Shortly after the
request for a permit was received, a high ranking federal official
was assigned to work out the permit details. He met almost
daily with the same demonstration leaders who had been denied
an audience in Chicago, driving with them in his car to examine
various proposed sites for the rallies.
The demonstrators were allowed to construct a huge circus
tent near the Washington Monument to serve as a focal point
for their activities. They were not prohibited from sleeping in
the tent. They were permitted to stage a parade along Penn-
sylvania Avenue, the main thoroughfare through the center of
government in Washington, the day before the Inaugural Pa-
rade was to take place. Liability bonds were not required;
rather, the permit required MOBE to use "all means at its com-
mand and under its control" to avoid damage.
The leaders of the protest, impressed with the forthrightness
of the government spokesmen, made every effort to cooperate
with city officials. Rennie Davis, a MOBE official who had fig-
ured prominently during the Chicago convention, commented to
the press, "I feel we have here the kind of cooperation we did
not have in Chicago. For this reason I do not expect the physical
confrontations and riots we had in Chicago." Potential trouble
spots were pinpointed by the MOBE officials and the city learned
in great detail the protestors' plans. They were thus able to
deploy small forces of policemen to areas where they might be
most effective yet relatively unobstrusive.
A Tale of Two Cities 349
Mutual cooperation characterized the resulting activities, en-
abling both sides to react quickly to any emergency. The city
supplied MOBE officials with direct communication links, such
as walkie-talkies, which avoided breakdowns of communication
at important crises. During one scuffle, policemen were kept
away from the area while MOBE officials restored order. When
the generator which supplied electricity to the demonstrators'
tent ran out of fuel, the city fire department delivered the fuel
within minutes. During the crucial minutes before the Presi-
dent's car passed an assembled group of dissidents along the
route of the Inaugural parade, city officials agreed, at the request
of MOBE officials, to relieve a police officer who had angered
the crowd by using unnecessary force.
It is impossible at this point in time to determine whether
protesters or police "struck the first blow" in Chicago. What is
clear is that a few protestors and a few policemen began en-
gaging in provocative conduct as soon as significant numbers
of demonstrators began congregating in Chicago. Nevertheless,
the mood was calm on Saturday and Sunday.
Escalation soon took place as dozens of policemen using tear
gas and clubs cleared Lincoln Park after curfew on Sunday,
Monday, and Tuesday nights. Without coherent plans, policemen
chased and clubbed innocent and guilty alike through the quiet
streets of Old Town, often great distances from the park.
Frightened and battered, the demonstrators regrouped during
the days following these bloody chases. Like veterans of a war,
they recounted to each other the horrors they had experienced
the previous night. Anger mounted at stories of "leaders" being
arrested for no apparent reason.
Extremists who had earlier been ignored began to attract
audiences. The protesters were told they were being forced to
defend themselves and their friends. They were urged to resist
being trampled on and to fight back. Each day the police were
exposed to more and more jeers and obscenities. Each night
they had to withstand heavier barrages of rocks.
(The demonstrators' chief "weapon" was obscenity. Many
rocks were thrown, but only a small number of demonstra-
tors actually threw them. At no time did massive numbers
of demonstrators engage in rockthrowing, not even on
Wednesday night. Descriptions of the rock-throwing as
"barrages" are, therefore, misleading unless qualified. They
were barrages only in the sense that numbers of unidenti-
fiiable people engaged in the rock-throwing. These people
were scatered thinly through the crowds.
It was widely reported that human excrement was thrown
at policemen. The reaction to these reports was under-
standably intense. However, little factual foundation sup-
350 Report of the Task Force on Law and Law Enforcement
ports these reports. Only three people, two policemen and
a reporter, actually reported having seen feces thrown.
Whether or not these reports were accurate, the conclusion
is inescapable that the image of many demonstrators throw-
ing human excrement has been drastically exaggerated. In
all probability, human excrement was thrown on only one
or two occasions if it was thrown at all.)
Each day and night the police responded with even more venom,
sowing the seeds of even more anger.
The escalation of anger is revealed by the statistics dealing
with injuries. On August 25, the night of the first major con-
frontation, only 2 policemen were injured. The next two nights,
15 and 13 policemen respectively were injured. Yet on the
fourth night of the convention, 149 policemen suffered injuries.
(The injuries to the demonstrators show a different sequence
a much greater percentage received their injuries during the
early days of the convention.) Thus, more than three-fourths
of the injuries to policemen were sustained on the fourth day
of a struggle in which hundreds of demonstrators had already
been clubbed or arrested.
The escalation of violence was thus a response to unfolding
events. Goaded by a few extremists who antagonized police by
jeering them, the police responded by indiscriminately gassing
and clubbing large numbers of protestors. More and more pro-
testors, angered at this willful violence by policemen, struck
back in the only ways they, as upper-middle class, college-edu-
cated youths could by swearing and throwing rocks. And so
the escalation continued. Demonstrators provoked policemen.
Policemen provoked demonstrators. The circuit of violence was
closed.
This cycle was never allowed to complete itself in Washing-
ton. Provocation by demonstrators was met with restraint.
Provocation by policemen was terminated by police and city
officials who intervened quickly to restore discipline. As a re-
sult, escalation never took place.
Spokesmen for the demonstrators themselves attributed the
difference in results between Chicago and Washington to the
difference in official response.
According to David Dellinger, Chairman of MOBE :
The mood of the Mobilization people was much the same.
The difference in the results was caused by the different
attitudes of the city administration involved. Washington
felt it was capable of containing demonstrations without
turning it into a police riot.
Another MOBE official commented :
A Tale of Two Cities 351
The difference between Chicago and Washington was a
permit and a tent. The police react as the officials react.
In Washington, the officials reacted well and the police
reacted well. As a result, the demonstrators acted well
towards the police and the officials.
Fruitful lessons can be learned from this comparison. The
encouragement of First Amendment rights, coordination and
cooperation with protest leaders, education of the police and
the larger community into viewing peaceful demonstrations as
a matter of right, will usually lead, at least at this point in our
nation's history, to obtaining the cooperation of the great major-
ity of those who have gathered to protest.
We do not mean to suggest that mass protest gatherings are
static that tactics should be identical as time passes and issues
and personalities change. The actions of the "Weathermen," an
extremist fringe which engaged in offensive violence in Chicago
in October, 1969, illustrates the danger in generalizations of any
sort. Rather, the point is that in the area of mass demonstra-
tions, where we all have so much to learn, it makes sense for
those in authority to proceed cautiously, to avoid becoming rigid
in outlook, and to employ force carefully.
A PROGRAM FOR THE FUTURE
The police must respond with the coolness and sound
judgment they are expected and trained to exercise. They
must discriminate between those relatively small number
of individuals who instigate and engage in lawlessness and
those who are innocent by-standers or merely caught up
in the emotion of the event; and above all, they must not
sacrifice the law or justice in the process of preserving and
restoring order. 22
There is no question that the police in the recent Chicago dis-
orders and this has also been true in many other cities were
subjected to intense provocation by some individuals ranging
from vilification to injurious missiles. The average person con-
fronted by that kind of abuse would not be expected to continue
to exercise good judgment and restraint.
Nevertheless, it is incorrect to say that no riot control force
can be expected to respond to intense provocation in a disciplined
and restrained manner. The Walker Report concluded that the
National Guard "apparently stood its ground without any sig-
nificant response physical or verbal to the demonstrators,
despite the level of abuse that one guard official called "un-
believable'." While there were instances of undisciplined re-
action on the part of individual guardsmen, it appears that they
were able to withstand considerable provocation. Similarly,
352 Report of the Task Force on Law and Law Enforcement
members of the Washington, D.C., police force withstood in-
tensely provocative conduct during the Counter-Inaugural Pro-
test activities with little visible reaction.
This does not mean that the civil government should not act
promptly and decisively against violations of its laws. As the
Civil Disorders Commission stated :
Individuals cannot be permitted to endanger the public
peace and safety, and public officials have a duty to make
it clear that all just and necessary means to protect both
will be used.
But the very essence of police professionalism and all good
police training programs, including Chicago's, stress this
demands that a police officer remain calm and impartial despite
intense provocation. 23 As the Civil Disorders Commission
stated :
Police discipline must be sufficiently strong so that an
individual officer is not provoked into unilateral action. He
must . . . avoid panic or the indiscriminate and inflamma-
tory use of force that has sometimes occurred in the heat
of disorders.
This kind of self discipline is essential in dealing with any tense
situation and especially in controlling a demonstration or ,a dis-
order. As the FBI riot control manual states:
The basic rule, when applying force, is to use only the
minimum force necessary to effectively control the situa-
tion. Unwarranted application of force will incite the mob
to further violence, as well as kindle seeds of resentment
for police that, in turn, could cause a riot to recur.
Policemen do not operate in a vacuum, but in a context of
strong human emotions. It is easy to understand how members
of a police force can get angry after having people swear and
throw rocks at them. But few "law and order" advocates take
the time to imagine how they would react if policemen clubbed
and beat their friends, wives, or daughters simply because of
their color, their clothes, or the fact that someone else nearby
had committed an illegal act. Yet who has not felt anger at
receiving what he considers an unjustifiable traffic ticket? One
commentator captured the phenomenon by asking the rhetorical
question, "Can anything be more frustrating to an American
than to be beaten and otherwise mistreated by the very author-
ities who have been entrusted with a monopoly of physical
force . . .? 24
America's younger generation may indeed be the most peace-
loving and rational this country has ever enjoyed. Should we
A Tale of Two Cities 353
not pause when, as in Chicago, hundreds of young idealists are
driven to join their less rational compatriots in hurling abuse
and rocks at "Friendly Officer John"? Should we not ask why
the chain of events has taken place rather than condemn
thoughtlessly? For hundreds of our nation's best educated youths
to shout obscenities at duly constituted law enforcement officials
is such a bizarre phenomenon that it is hard to believe that it
actually took place.
The provocative acts by a handful of radical extremists in
Chicago and the vicious battles with policemen in Cleveland
and elsewhere create a real danger that a few people will
succeed in provoking the police and civil officials into employ-
ing brutal and repressive measures which will alienate mod-
erates in the community and create in this country the very
kind of dangerous insurgency which other countries have ex-
perienced. It is imperative that police and public officials avoid
falling into this trap. For the tactics and pattern of deliberate
terrorism and guerrilla-type activities which seem to be start-
ing to emerge follow the classical development of a revolutionary
movement. It could lead to an urban insurgency that would
have far-reaching consequences for all Americans, white and
black, rural and urban.
The history of groups with severe, legitimate grievances has
demonstrated again and again that when a radical element
seeks the leadership it first attempts to organize the bulk of
the grievance group into a supporting and protective force. To
win this kind of majority support, they will try to alienate the
grievance group from the community. This will be done through
a variety of demands and actions that will cause the general
community, which fails to differentiate between the radical and
moderate membership, to become hostile to all of the grievance
group. In other countries confronted by civil unrest arising
from legitimate grievances by significant segments of the popu-
lation, riots and organized violence have been effective tech-
niques employed by extremist groups both to radicalize those
demanding social, economic or political change as well as to
goad the authorities into overreacting with indiscriminate and
excessive force. These attacks have been directed against vital
installations such as power, telephone, water atid transporta-
tion systems, for the purpose of disrupting and paralyzing the
normal processes of government and of the community. Attacks
have also been launched against the institutions of the ruling
society schools, shopping centers, government buildings and
prominent individuals.
The normal and traditional reactions of those attacked has
been to urge a policy of stern repression and to refuse to re-
spond to any of the demands until the violence stops and order
354 Report of the Task Force on Law and Law Enforcement
is restored. But this is the very response that the radical leader-
ship has sought to evoke. By manipulating the outraged reac-
tion of the community and the police into retaliatory measures
which will alienate those seeking redress of legitimate griev-
ances, they will then be more successful in persuading the ag-
grieved that they cannot achieve their objectives through peace-
ful, evolutionary means within the system ; that their only hope
of effecting change is to resort to violence and revolution.
The American people had a chance to observe a limited version
of this tactic in action at San Francisco State College this past
year. 25 Starting with a small number of black students who
engaged in minor forms of disruption, the ensuing battle re-
sulted in a mobilization of student opinion overwhelmingly in
sympathy with the demands of the original minority. One of
the leaders of the strike explained the tactic before the strike
began :
It just so happens that the members of the BSU Central
Committee have been analyzing how student movements
have been functioning. Taking over buildings, holding it
for two or three days, and then the thing is dead. Most of
your leaders are ripped off and thrown in jail, or the masses
are thrown in jail, and there's no one to lead them. From
our analysis of this, we think we have developed a tech-
nique to deal with this for a prolonged struggle. We call
it the war of the flea . . . what does the flea do? He bites,
sucks blood from the dog, the dog bites. What happens
when there are enough fleas on a dog? What will he do?
He moves. He moves away. He moves on. And what the
man has been running down on us, he's psyched us out, in
terms of our manhood. He'll say, what you gone do, nigger?
You tryin' to be a man, here he is with shotguns, billy clubs,
.357 magnums, and all you got is heart. Defenseless. That's
not the way it's going to go any more. We are the people.
We are the majority and the pigs cannot be everywhere,
everyplace all the time. And where they are not, we are.
And something happens. The philosophy of the flea. You
just begin to wear them down. Something is always costin'
them. You can dig it ... something happens all the time.
Toilets are stopped up. Pipes is out.
Water in the bathroom is just runnin' all over the place.
Smoke is coming out of the bathroom. "I don't know nothin'
about it. I'm on my way to take an exam. Don't look at
me. . . ." When the pig comes down full force, ain't nothin'
happening. He retreats. When they split, it goes on and
on and on. . . , 26
Governor Ronald Reagan and the Board of Trustees predictably
A Tale of Two Cities 355
refused to deal with the student demands until "order" had
been restored. This refusal to deal promptly with the merits
of the strike antagonized moderate students and faculty, who,
although they disagreed with the strikers' "tactics," agreed in
whole or in part with their demands.
Nevertheless, support for the strike began to wane until only
several hundred students were actively involved. The real mo-
biilzation of student opinion occurred only after a unit of the
police tactical squad blundered into a club-swinging confronta-
tion with students, many of whom were uninvolved in the strike.
According to the Orrick Report, this was the "turning point"
of the strike, resulting "in an almost classic pattern of escala-
tion." 27 By the end of the day the strike had been turned into
an undertaking supported by thousands of students. Normalcy
was not restored until significant concessions were made to the
strikers' demands.
Studies made of urban insurgencies in other countries have
shown that it is very difficult to destroy an urban resistance
movement in a divided country. 28 The amount of ruthlessness
which the police must employ to crush such an insurgency would
become publicly intolerable, even though the provocation con-
sists of various forms of terror and sabotage that outrages re-
sponsible people.
History has shown that the temporary order achieved by em-
ploying methods of force which are excessive or inappropriate
in their nature is likely to be won at too high a price in terms
of a divided and bitter citizenry and an unstable civil peace.
The self-defeating effect of force which the community regards
as excessive or unjustified has been demonstrated over and over
again. This has been true not only in this country but abroad
as well. It was the brutal physical force used by the Paris riot
control forces against the rebellious students that mobilized
public sympathy and support and turned a relatively minor riot
into a major disaster that paralyzed all France during May of
1968. It was the ruthless treatment of Irish rebels that led to
a universal outcry against the Black and Tans and created
popular support for the movement. It was the repressive meas-
ures employed by the French against the Algerian rebels that
led to public revulsion in France, and enabled the Algerian
revolutionaries to achieve their victory over superior French
police and military forces. It was the inhumaneness of police
dogs and cattle prods used against peaceful black Americans in
the streets of Selma which prompted the passage of civil rights
legislation. It was the excessive use of police force and the fail-
ure to discriminate between innocent and guilty parties during
the recent Chicago incidents that led to increased disaffection
among many students and other young persons. It was the
356 Report of the Task Force on Law and Law Enforcement
brutality exhibited by policemen at Columbia, Harvard, San
Francisco State, and the shotgunning of unarmed students at-
tempting to maintain their park in Berkeley (which resulted in
numerous injuries and the death of a young man) which
prompted mass, angry demonstrations and resulted in repulsing
large numbers of moderate members of the community.
The problem of the police in dealing with such deliberate
provocations and explosive situations coolly and intelligently is
tremendously complicated by the fact that in the United States
today there are more guns in the hands of individual citizens,
black and white, than in the hands of all the police, all the Na-
tional Guards and all the U.S. armed forces forces combined. The
private arsenal has grown since the sumer of 1967. Reports are
rampant of weapons stockpiling by vigilante groups as well as
black militants. 29 Firearm sales have skyrocketed in commu-
nities which experienced disorders, such as Detroit. The poten-
tial for counter-violence and increased disorder inherent in this
fantastic arsenal of privately owned weapons must be taken into
account by every official responsible for the public safety.
We do not mean to imply that the forces of discontent have
reached a level of intensity which presents such serious danger.
Few serious "revolutionaries" exist in our country, despite the
attention which they are given by the mass media and the gen-
eral public. More often than not, the self-styled "revolution-
aries" in reality are simply engaging in theatrics designed to
attract attention to their grievances.
Nevertheless, we must anticipate other acts of lawlessness
and terrorism to occur in various parts of our country which
the radical extremists on both sides will try to exploit to their
own advantage and objective. The immediate security problem
will require necessary measures that will enable the police and
civil authorities to distinguish among those who seriously wish
violently to disrupt, those who engage in disruptive conduct
out of fear and frustration, and those who wish to participate
in peaceful protest and demonstration.
A critical ingredient to the success and effectiveness in coping
with these control problems is good intelligence. It is essential
that the police possess an intelligence system which enables
them to measure with precision the real threat to the commu-
nity posed by individuals and groups. They must not mislead
officials by crying "Wolf!" each time a self -proclaimed revolu-
tionary urges that "something must be done."
Nor should such intelligence be gathered at the expense of the
civil rights and privacy of dozens of law-abiding people who
happen to disagree with the current policies of our government.
Information currently maintained on "suspect" individuals, such
as storing on a computer names of people who signed a petition
A Tale of Two Cities 357
critical of the Vietnam war effort, has no place in our society.
That form of intelligence gathering frightens individuals who
fear the misuse of the data and thus forego engaging in such
lawful forms of protest. 30 More reliable data could be gathered
by maintaining good public relations and establishing mutual
confidence and respect with the broad mass of community resi-
dents who want order and oppose violence and lawlessness.
It will also require proper and intelligent responses to those
who believe they have legitimate grievances and wish to exercise
their constitutional rights to protest or demonstrate peacefully.
Failure to recognize and protect such rights will only benefit
the extremists. As the FBI states in its manual on riot control :
A peaceful or lawful demonstration should not be looked
upon with disapproval by a police agency ; rather, it should
be considered as a safety valve possibly serving to prevent
a riot. The police agency should not countenance violations
of law. However, a police agency does not have the right
to deny the demonstrator his constitutional rights.
Despite the best precautions and no matter how effective the
counter-measures are, violent events are a risk that must be
anticipated. Consequently, planning for such contingencies must
be designed to limit the nature and extent of the damage and
to enable the community to continue to function satisfactorily.
We must recognize that the preservation of civil peace cannot
and should not be regarded as merely a control problem better
left to the police. It is the responsibility of the entire commu-
nity, in particular of its duly elected public officials. For the
demonstrations and the disorders which we are experiencing
are manifestations of deep and difficult social, political and eco-
nomic problems. They cannot be solved, much less long con-
tained, by police power alone, no matter how enlightened and
judicious that may be.
Police officials are understandably reluctant to relinquish the
authority that has devolved on them by default to deal with
mass disorders. They resent intrusion into what they consider
their professional domain by elected officials who do not share
their own professional background and experience. Often, at-
tempts by elected officials to regain their rightful place as
de facto as well as de jure heads of police departments have
been met with resistance and sometimes irreconcilable con-
flict. 31
This form of resistance must not be allowed to subvert elected
officials. Only government officials who feel the pulse of the
community in all its various manifestations are capable of de-
ploying effectively not only police resources, but other commu-
nity resources, such as social workers, human rights councils,
358 Report of the Task Force on Law and Law Enforcement
housing inspectors, and others, who can deal with the grievances
which may initially spark a confrontation. In later stages, only
the chief elected official has the authority to deploy and co-
ordinate fire-fighting units, courtroom personnel, as well as the
police. To look at the problem as only a police problem is
shortsighted.
This is not meant to imply, of course, that policemen are
always and necessarily less astute than elected officials, or that
the intervention of elected officials will always and necessarily
lead to more enlightened law enforcement. In fact, the result
may sometimes be quite the opposite. Besieged by a backlash
of public opinion, elected officials may be less able to deal fairly
with a dissident group than would a professional chief of police
removed from the political arena. But this observation does
not substantially weaken the force of our general recommenda-
tion, since it merely restates a problem inherent in a democracy.
Washington, B.C., has made significant strides toward cen-
tralizing in the hands of its Mayor the responsibility for dealing
with civil disorders. Following the disorders that accompanied
the assassination of Martin Luther King, Mayor Walter Wash-
ington established a command post which operates around the
clock and which serves as his office during an actual civil
emergency.
Inside the Command Post a sophisticated array of communi-
cations equipment links the staff with the outside world, en-
abling them to monitor events and control available resources
instantaneously. Efforts are made to resolve community griev-
ances breeding hostility. Advance intelligence pinpoints poten-
tial trouble spots throughout the city and observers dispatched
to the scene keep the staff informed on the situation.
Events likely to precipitate tension, such as shootings involv-
ing policemen, are immediately brought to the attention of the
Mayor and other city officials. The Commissioner of Human
Rights is immediately dispatched to the scene.
A disorder which escalates brings the Mayor to the Command
Post. From his desk he can watch the event on four television
sets, listen to police and commercial radio broadcasts, examine
maps of the trouble zone, and receive instantaneous messages
from observers in the field and officials of the city and federal
governments. By pressing a button he can have conference calls
with every relevant official in the city, federal government, mili-
tary, and neighboring communities. From his desk, his home, or
his car, he can broadcast over every Washington AM and FM
radio station by pressing another button.
Everything occurring at the Command Post is recorded for
future reference. Studies are constantly made to modify pro-
cedures and update techniques.
A Tale of Two Cities 359
The result of this planning has been heartening. Despite
the underlying tension in the community, Washington has en-
joyed a year of relative calm. Disorders have been handled
effectively and with moderation.
The dangers ahead do not come only from the radicals of
the left who are seeking to change the established system and
its institutions. There is an equal potential for violence and
destruction among the redical minority of the right who mili-
tantly oppose any concessions to the grievance group. The
history of our own country is replete with examples of such
extremists who have turned to counter-terror as a means of
retribution and preservation of the status quo.
In his testimony before the Commission, Dr. Richard Max-
well Brown reviewed the conditions that historically have pro-
duced vigilantism. An analysis of the current climate in the
United States led Professor Brown to warn the Commission
that "a new wave of vigilantism is a real propect today." If
the hard-core of extremists on the right, who are today actively
organizing, arming, and threatening to take the law into their
own hands, should do so, they will contribute to the very same
polarization and chain of violence that the hard-core extremists
on the left are working so hard to accomplish.
It is easy to understand the daily frustrations police officers
must live with in fighting a losing battle against the rising
incidence of crime and of trying to maintain the civil peace in
an environment of tension and hostility which is directed against
the institutions a policeman has been taught to respect and
value. It is equally understandable how fearful and angry so
many Americans feel over their sense of physical insecurity for
themselves and their families, and their apprehension and out-
rage against group violence that has accompanied many civil
disorders.
None of us should forget, however, that real security of
persons and property in our cities and the preservation of
the civil peace will only be meaningful if they are achieved in a
way that is consistent with the values of a democratic society.
This will require order that is maintained under the law and
with justice. Justice in this respect is not simply a semantic
embellishment. It is the way chosen by our founding fathers to
insure that groups who feel themselves outside the mainstream
never become so alienated that they resort to violence. In that
respect, this Nation differs from most nations in the world.
Because of it, we have experienced an existence of relative
peacefulness. We should not sacrifice the best of our heritage
amid the growing public-clamor to remove the thorns of dis-
enchantment from the nation's side.
360 Report of the Task Force on Law and Law Enforcement
A PROPOSED FEDERAL REMEDY
Since the 1930's, the people of the United States have fre-
quently turned to the Federal Government for remedial action
in matters ranging from control of the economy to the exercise
of Constitutional rights. The civil rights acts of recent years
provide specific federal remedies for private interference with
other constitutional rights, such as the right to employment,
housing, travel and use of public accommodations and commer-
cial establishments free of discrimination because of race, re-
ligion or national origin, the right to vote and participate in any
federally assisted program, and the right to carry on a business
free of intimidation or injury during a riot or civil disorder.
Yet, at the present time of crisis, during which the denial of
First Amendment rights has led to intense polarization and
violence, we limp along slowly trying to resolve these matters
in an unsystematized way.
It would appear to be an equally valid and justified exercise
of Congressional power to provide a specific federal judicial
remedy for unlawful interference with the rights of speech,
assembly, petition and free passage incidental thereto. The
precedents of our history commend a new federal law which
would (1) empower the federal government to seek judicial
redress (especially injunctive relief) for unlawful interference
with First Amendment rights, and (2) authorize an agency of
the government to investigate the extent to which First Amend-
ment rights are secured.
Although private individuals may presently seek redress under
42 U.S.C. 1983, a Reconstruction era statute creating liability
for "deprivation of any rights, privileges, or immunities secured
by the Constitution and laws" by any person "under color of"
state law, 32 private parties are not always suitable litigants in
the First Amendment forum. Litigation is costly. In addition,
in the area of free speech, not all invasions have a direct indi-
vidual effect and the broader, possibly more indirect deprivations
of rights may go unchecked. Similarly, where a deprivation of
rights may lead to violence, the interests of the public should
not be left to private litigation. Additionally, private litigants,
although possibly correct in their interpretations of events, often
have difficulty persuading courts of the soundness of their posi-
tion when faced with contradictory statements of duly consti-
tuted law enforcement officials.
In recent civil rights and voting rights legislation, Congress
has made the Attorney General an increasingly active figure
in protecting certain vital individual rights. This approach
seems particularly appropriate for the protection of First
Amendment rights, also.
A Tale of Two Cities 361
New legislation should give the Attorney General broad
authority to commence, or intervene in, civil actions brought
against public officials to protect freedom of expression whether
that expression is endangered by the denial of permits, the
unnecessary use of police force, or the interference with pub-
lications promulgated by dissident groups. Incident to that
power, the Justice Department would automatically have the
authority to investigate alleged interference with First Amend-
ment rights. The Department would become a powerful force
seeking immediate, informal resolution of potential confronta-
tions involving freedom of expression. Where confrontation
appears inevitable, the Department would be able to resort to
the courts promptly, provide essential factual material and
help in other ways to make the courts a more effective forum
for resolving First Amendment conflicts.
The federal government, perhaps through the Civil Rights
Commission, should also undertake to collect and study infor-
mation on developments relating to freedom of expression and
establish a national clearing house for such information. It
should undertake the review and development of legislation and
policy guidelines at the state and local as well as federal
level in the area of First Amendment rights.
Additional questions will exist regardless of who is to admin-
ister the proposed statute. Protection for the press and other
media, for example, should also be granted. Federal courts
must be able to respond quickly enough in the normal course of
litigation to insure that rights are not abandoned due to lapse
of time.
These problems, and no doubt many others, must be resolved
before new federal protection for freedom of expression can
be enacted. But we believe such protection is plainly necessary,
and we hope this proposal advances its course.
REFERENCES
1 Roy Pearson, "The Dilemma of Force," Saturday Review, Feb. 10, 1968,
at 24.
2 Erskine, "The Polls: Demonstrations and Race Riots," 31 Public Opinion
Quarterly 655-677.
3 June 7, 1968.
4 Ted Gurr, Why Men Rebel, ch. 8, to be published by the Princeton
University Press, Nov. 1969.
5 See, e.g., Robert M. Fogelson, "From Dissent to Confrontation: The
Police, the Negroes, and the Outbreak of the Nineteen Sixties Riots/'
83 Political Science Quarterly 227 (June 1968).
6 Crisis at Columbia, Report of the Fact-Finding Commission Appointed
to Investigate the Disturbances at Columbia University in April and May,
1968, (New York: Vintage Books, 1968) at 99-168; Police on Campus:
362 Report of the Task Force on Law and Law Enforcement
the Mass Police Action at Columbia University, Spring, 1968 (New York:
American Civil Liberties Union, 1969).
7 Rights in Conflict, A Report to the National Commission on the Cause
and Prevention of Violence 53 (1968).
8 See id. at viii, 31, 53.
9 Although the Columbia disorders were preceded by a number of events,
the precipitating incident occurred when a group of students occupied
Hamilton Hill, a classroom building. Thereafter, the office of the university's
president and several other campus buildings were occupied. The students
announced three causes motivating the seizure and occupation of the
buildings. These were: (1) opposition to a projected gym to be constructed
in a Harlem park; (2) opposition to Columbia's relationship with the
Institute of Defense Analysis, a warfare research organization; and
(3) opposition to the disciplinary action taken by the university as a result
of its ban on indoor demonstrations. Efforts at mediating the dispute and
persuading the protesting students to leave the buildings were attempted by
a faculty committee. Although these efforts proceeded for several days, they
were unsuccessful. One week after the occupation began, police entered the
affected buildings and cleared them of demonstrators. Violence occurred
not only in the occupied buildings but in the surrounding campus area
which was also ordered to be cleared. One hundred and three persons
obtained hospital treatment and 692 persons were arrested.
10 New York Times, May 9, 1968, at 1.
11 A. H. Barton, "The Columbia Crisis: Campus, Vietnam, and the
Ghetto," 32 Public Opinion Quarterly (1968).
12 New Republic, June 28, 1969.
13 The relevant studies are summarized and evaluated in Gurr, supra
note 4.
1 4 Paul R. Miller, Characteristics of Youth Activists: The Chicago
Demonstrators (1968).
15 It is interesting to note that far more intense feelings were registered
in responses to questions regarding adherence to "Humphrey Democrats"
politics. Only 1 percent were for this political philosophy, while 78 percent
were against and 21 percent were indifferent.
16 Rights in Conflict at 49 contains a lengthy list of reported "threats"
which can only be described as ludicrous. Although the novelty of this form
of attention-getting had waned by the time of the Counter-Inaugural protest,
similar threats preceded that event. Rights in Concord at 81.
I? Rights in Conflict at 59.
18 Id. at viii.
19 Id. at 59.
20 In addition to the findings reported in Rights in Conflict at viii, 31-42,
the Sparling Commission, comprised of prominent citizens in the Chicago
area, recently concluded:
Chicago's record in regard to right of assembly and use of streets and
parks is a discriminatory one. Over two decades, the city has welcomed
parades down its main streets by conventional groups and for such occa-
sions as St. Patrick's Day, Christmas, Armed Forces Day, Gen. Douglas
MacArthur Day, Veterans Day and Columbus Day.
Groups with unpopular opinions have had a different experience. When
they attempted to parade or rally, march or demonstrate, it is fair to say
generally they met a wall of silence and delay, and obtained permits with
the greatest difficulty.
The Commission further accused Chicago officials of deliberately and
unconstitutionally manipulating permit requirements by means of "fraud"
and "lies" to deny permission to those who wished to protest at the
convention. See the New York Times, Aug. 21, 1969, at 23.
A Tale of Two Cities 363
21 Rights in Concord at 115. The following discussion is taken from the
same report at 82-88.
22 Arnold and Louise Sagalyn, Paper prepared for The National Com-
mission on the Causes and Prevention of Violence.
23 Chicago Police Department Training Bulletin, Tension Situations
(Apr. 24, 1967) :
Preventing civil disorders is always easier than suppressing them. The
police officer, by disciplining his emotions, recognizing the rights of all
citizens, and conducting himself in the manner his office demands can do
much to prevent a tension situation from erupting into a serious disturb-
ance . . .
The officers making the arrest must not show partiality in any manner.
They should not make indiscriminate or mass arrests. Above all, the
officers must not become excited. Such an emotion can easily spread to the
crowd and cause serious difficulty. The officers on the scene should display
tact and constraint. The officers must be calm and act as a neutralizing
agent.
24 Fogelson, supra note 5 at 277.
25 The following discussion is based on Shut It Down! A College in
Crisis (U.S. Govt. Printing Off., 1969), the report on the San Francisco
State disorders prepared for the Commission by William H. Orrick, Jr.
26 Id. at 128-129.
27 Id. at 41 et seq.
28 See Report on Urban Insurgency Studies, sponsored by the Advance
Research Projects Agency, Washington, B.C.
29 See ch. 9 of the Commission's Task Force Report on Firearms,
Firearms and Violence In American Life (U.S. Govt. Printing Off. 1969),
prepared by George D. Newton and Franklin E. Zimring.
30 A judge of the New Jersey Superior Court has recently ruled uncon-
stitutional that state's method of collecting data on "activists." Anderson
v. Sills, No. C215-68, Aug. 6, 1969.
31 Seek Skolnick, Politics of Protest, ch. VII.
32 For application of the statute in First Amendment cases, see Hague
v. CIO, 307 U.S. 496 (1939).
CHAPTER 17
SECURING POLICE COMPLIANCE WITH
CONSTITUTIONAL LIMITATIONS: THE
EXCLUSIONARY RULE AND OTHER
DEVICES*
The Supreme Court of the United States has evolved rules
governing police conduct in making searches and arrests (now
eavesdropping and wiretapping as well) from the imprecise
words of the Fourth Amendment: "The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the person or things to be seized." The Court's de-
cisions have set constitutional limits on permissible police con-
duct, and in recent years these limits have become binding on
State as well as federal officers.
Obviously, the content of these rules and other rules governing
police conduct is likely to have a great impact on the incidence
of violence in the community. If the rules permit police to use
considerable force in a wide variety of situations, the level of
violence rises. If the rules permit conduct which is generally
considered outrageous, either as an intolerable invasion of
personal security or of privacy, we can expect outbursts of vio-
lence in protest against the sanctioned behavior. If the rules
so hobble the police that convictions are extremely difficult to
* This chapter was prepared by Dean Monrad G. Paulsen, Professor
Charles Whitebread, and Assistant Professor Richard Bonnie of the
University of Virginia School of Law.
The authors gratefully acknowledge the substantial assistance in the
writing of this chapter of Richard J. Bonnie, who is joining the faculty of
the University of Virginia School of Law as an Assistant Professor.
We also acknowledge the contribution of Robert W. Olson, whose Note on
Grievance Response Mechanisms for Police Misconduct in the June 1969
issue of the Virginia Law Review contains views similar to those expressed
in this chapter. Finally, we note the valuable research efforts of Craig H.
Norville, W. Tracey Shaw and Russell R. French, also students at the
School of Law.
365
366 Report of the Task Force on Law and Law Enforcement
obtain in cases involving serious harms, the resulting anxiety
and fear may themselves prove to be a breeding ground for
destructive outbursts. This relationship between violence and the
rules governing the police is further complicated by the fact that
the methods of enforcing the rules are likely to differ in respect
to their respective capacities to produce dangerous responses.
This chapter is devoted to an examination of the many ways
by which police compliance might be secured. We began with
what has been, historically, the most controversial of the means of
securing compliance the exclusionary rule. (The rule of exclu-
sion obviously is also used to discourage police and other official
misconduct involving other Constitutional provisions, such as the
Fifth Amendment's protection against being required to make
self-incriminatory statements.) Thereafter we treat a wide var-
iety of other remedies ranging from damage actions and injunc-
tions to civilian review boards and "ombudsmen." At the con-
clusion we recommend a new approach to the problem of remedy-
ing police misconduct.
THE EXCLUSIONARY RULE
Until 1914 the general view of the nation's courts, state and
federal, was that all material and relevant evidence should be
admissible in a criminal case without regard to the manner by
which it was obtained. The first important change in judicial
opinion is recorded in Weeks v. United States. 1
By a motion made prior to trial, the defendant in Weeks
sought the return of property taken from him by police without
a semblance of lawfulness. His house had been entered without a
warrant and thoroughly searched in his absence. The trial court
ordered the return of all the property taken save that "pertinent"
to the charge against him (use of the mails for transportng
lottery tickets). The Supreme Court reversed in a unanimous
opinion, and held that even the material relating to the offense
should have been returned, basing its decison on two main points :
(1) "The tendency of those who execute the criminal laws
of the country to obtain conviction by means of unlawful
seizures and enforced confessions . . . should find no sanction
in the judgments if the courts which are charged at all times
with the support of the Constitution and to which people of
all condition's have a right to appeal for the maintenance of
such fundamental rights" 2 ;
(2) "If letters and private documents can thus be seized
and held and used in evidence against a citizen accused of an
offense, the protection of the Fourth Amendment declaring his
right to be secure against such searches and seizures is of no
Securing Police Compliance With Constitutional Limitations 367
value, and, so far as those placed are concerned, might well
be stricken /rom the Constitution." 3
The first point has been echoed by Justices of impressive
authority. Justice Holmes has written, "We have to choose, and
for my part I think it a less evil, that some criminal should
escape than the Government should play an ignoble part." 4 Mr.
Justice Brandeis put the point that the use of illegality obtained
evidence, "is denied in order to maintain respect for law; in
order to promote confidence in the administration of justice;
in order to preserve the judicial process from contamination." 5
Judge Roger Traynor of California observed in People v. Cahan, 6
"The success of the lawless venture depends entirely on the
court's lending its aid by allowing the evidence to be introduced."
The facts of Cahan underscore the point. The police conduct
there involved two separate trespasses into a private home in
order to install a microphone. The action was undertaken after
permission had been received from the Los Angeles chief of
police. The entire purpose of the illegal conduct was to obtain
evidence for use in court. The incident was planned and approval
was obtained at the highest level of police authority. It was not
the case of a rookie policeman who misjudged the complicated
law of search and seizure.
The spectacle of government breaking the law and employing
the fruits of illegal conduct seems likely to breed disrespect for
both the law and the courts, It does not seem daring to suggest
that in such disrespect may lie the seeds of violent conduct.
The second point, that without the exclusionary evidence rule
the constitutional guarantees of the Fourth amendment are of
"no value", has also proved persuasive in the decisive cases. In
Mapp v. Ohio, 1 which extended the exclusionary evidence rule to
the States, Mr. Justice Clark wrote; . . . "[without the rule]
the freedom from state invasions of privacy would be so ephe-
meral ... as not to merit this Court's high regard as a freedom
implicit in the concept of ordered liberty." Mr. Justice Traynor,
again in People v. Cahan, 8 affirmed, "Experience has demon-
strated . . . that neither administrative nor civil remedies are
effective in suppressing lawless searches and seizures." At an-
other point in that opinion, which embraced the exclusionary rule
for the state of California six years before Mapp, Justice
Traynor explained the action of the California Court: "other
remedies have completely failed to secure compliance with the
constitutional provisions on the part of police officers." 9
Whether the exclusionary rule actually does effectively deter
the police is a question without a firm answer. No solid research
puts the question to rest. The assumption is that the police wish
to convict those who commit crimes and that, if we bar the use
368 Report of the Task Force on Law and Law Enforcement
of evidence illegally obtained, the police will conform to the rules
in order to achieve that aim.
We know that the rise and expansion of the exclusionary
rule has been accompanied by many efforts at police education.
Courses in police academies, adult education programs for police
sponsored by local headquarters ; courses in colleges and univer-
sities offered to police on the issues presented by the Fourth
Amendment have sprung up nearly everywhere. More and more
police leaders affirm the necessity for staying within the rules.
More and more police departments have become interested in the
formulation of guidelines for the officer on the beat who must
make snap judgments. It is difficult not to credit the exclusionary
rule for some of these developments.
One criticism of primary reliance on the exclusionary rule to
deter police misconduct is that, with its rationale of deferrence
through deprivation of incriminating evidence, it does not deter
when police act in situations where prosecution is not contem-
plated. If officers merely seek to harass a citizen, the exclusionary
rule does not influence the officers to cease. 10
We do not see ths point as an argument against the rule,
however, but only as calling for the creation of other remedies.
The need is for supplementation, not abandonment.
Another question is: will reliance on the exclusionary rule
breed police violence? If the police are "handcuffed" and, there-
fore, unable to obtain convictions, will they impose extra judicial
punishment? Will they subject dangerous "criminals" (so iden-
tified by the police) to beatings and harassments? If so, the need
is again for additional remedies not necessarily abandonment
of the rule. It is important to remember, as well, that if the police
are "handcuffed" it is because of the rules of search and seizure
and not because of the rule of exclusion. The rule of exclusion tells
nothing of the rules governing the police : the exclusionary rule
can operate with strict limitations on police activity as well as
with limitations which permit the police a wide latitude in the
choice of behavior.
Judge Henry Friendly of the U.S. Court of Appeals for the
Second Circuit has recently suggested that we ought not apply
the exclusionary rule to enforce all the search and seizures rules
in all kinds of cases. United States v. Soyka u involved the ad-
missibility of evidence taken by illegal conduct but Judge Friendly
described the police behavior as an error ". . . so minuscule
and pardonable as to render the drastic sanction of exclusion,
intended primarily as a deterrent to outrageous police conduct
. . . almost grotesquely inappropriate." 12 He went on to suggest
the possibility of a system which would apply or not apply the
exclusionary rule depending on the gravity of the offense involved
and the seriousness of the police misconduct. 13
Securing Police Compliance With Constitutional Limitations 369
Judge Friendly's position is attractive because it suggests
that a single value should not outweigh all others. The difficulty
lies in the practical application of the principle. Can we articulate
the suggested standard with sufficient precision so that it can
be grasped by the police? Will a police officer readily know the
seriousness of the offense which confronts him so he will know
whether to use the "technical" or "liberal" rules of search and
seizure? Can courts handily apply the proposed standard with
uniformity and fairness?
The exclusionary rule not only forbids the use of evidence
secured in violation of law but also of evidence derived from
that originally taken. The courts may not use the "fruit of the
poisonous tree." 14 Thus courts have held that fingerprints taken
after an unlawful arrest are inadmissible 15 and certain state-
ments made by an arrested person after an illegal arrest are
barred from the trial. 16
The key question is, of course, what is the "fruit" of illegal
activity. Does it mean that all evidence which the police would
have "but for" the illegal conduct? If so, the sweep of the principle
wil be wide indeed. The Supreme Court has rejected the "but
for" test and said the question is whether "the evidence to
which instant objection is made has been come at by exploitation
of that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint. 17
Complaints about the broad application of the "fruit of the
poisonous tree" principle, not strictly based on considerations
of deterrence, have been heard from some judges, including the
provocative discussion of the problem by Mr. Justice White in
his dissenting opinion Harrison v. United States, 18 and in Collins
v. Beto 19 Judge Friendly argued that the judges should relate
the reach of the principle to the seriousness of the police mis-
conduct.
Affecting the reach of the exclusionary rule is the doctrine of
"harmless error," under which judgements are not to be reversed
for error unless the error has prejudiced the defendant's case.
The Supreme Court addressed itself to the "harmless error"
question in Chapman v. California. Chapman and another had
been convicted upon a charge that they had robbed, kidnapped and
murdered a bartender. The California trial judge and the prose-
cutor had repeatedly referred by the privilege against self-
incrimination. 21 Mr. Justice Black's majority opinion in Chap-
man first established that whether a federal consitutional error
is harmless or not is an issue governed by federal law and that
all constitutional errors are not necessarily harmful. But the
Court held that :
"before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harm-
370 Report of the Task Force on Law and Law Enforcement
less beyond a reasonable doubt. While appellate courts do
not ordinarily have the original task of applying such a
test, it is a familiar standard to all courts, and we believe
its adoption will provide a more workable standard, al-
though achieving the same result as that aimed at, in our
Fahy case [holding that the error cannot be harmless where
there is a reasonable possibility that the evidence com-
plained of might have contributed to the conviction] . . ." 22
Chapman's conviction was reversed. "Under these circumstances
it is completely impossible to say that the state had demonstrated
beyond a reasonable doubt the prosecutor's comments and the
trial judge's instructions did not contribute to petitioner's con-
victions." 23
On June 2, 1969, however, the Supreme Court held in Harring-
ton v. California 24 that a constitutional error in the trial of a
criminal offense was harmles because there was "overwhelming"
untainted evidence to support the conviction. The three dis-
senters in Harrington and some legal scholars as well, believe
that the deterrent effect of the exclusionary rule will ultimately
be substantially vitiated by this approach to the question of
harmless error.
We have brought attention to minority views respecting the
scope of the exclusionary principle because these views may
gather adherents if exclusion proves to be the means whereby
the obviously guilty may find safety against conviction of crimes
of the greatest magnitude. We believe, however, the rule will
endure though its ambit may be narrowed if it offers sanctuary
for those who inflict the most brutal harms.
A final point about the exclusionary rule and its relation to
violence: we may guess that urge to destructive behavior is
greatest when the actor is moved by a sense of frustration
grounded in a feeling of injustice which he is unable to combat.
The exclusionary rule, however, provides an outlet within the law
for frustration stemming from the belief that the defendant
has been treated unjustly by the police. By a motion to sup-
press the defendant can in effect strike back at authority in the
very proceeding which is aimed at convicting him. We now turn
to other means, besides the exclusionary rule, of enforcing the
substantive rules governing permissible police conduct.
DAMAGE REMEDIES UNDER STATE LAW
In general, a policeman is personally liable under state law
for torts arising from his law enforcement activities. 25 Con-
sideration of tort liability must proceed simultaneously on two
fronts: effectiveness as a deterrent and utility as a mode of
Securing Police Compliance With Constitutional Limitations 371
redress. In order to eliminate violent response to alleged police
misconduct, our society must achieve both of these objectives.
The average citizen must be confident that police misconduct is
the deviant rather than the normal behavior and that he can
recover for injury suffered due to police improprieties.
Causes of action theoretically encompassing police misconduct
are false arrest, false imprisonment, malicious prosecution, tres-
pass and assault and battery. The substantive elements of each
will be briefly outlined in order to indicate the types of police
abuse theoretically remediable.
False arrest and false imprisonment, although differing in some
minor particulars, 26 may both be defined as the unlawful restraint
by one person of the physical liberty of another. 27 Although a
police officer is not strictly liable for all unlawful arrests, the
scope of the various defenses available to him has never been
adequately defined. It is clear that a citizen may not hold him
liable for an arrest illegal due to a defective warrant, for the
officer may rely completely on a warrant or other process "fair
on its face." 28 Surely there is no reason to hold him liable in such
situations since he has taken all the steps the law requires of
him.
On the other hand, the officer is theoretically liable for warrant-
less arrests unless the arrested person has committed an offense
in his presence or the officer has "reasonable grounds" or "prob-
able cause" to believe that the person has committed a felony. 29
Since "probable cause" is a defense, the policeman has the burden
of showing at least that "a man of ordinary care and prudence,
knowing what the officer knows, would be led to believe or
conscientiously entertain a strong suspicion that the arrested
person is guilty of a crime, even if there is room for doubt." 30
Although the Constitution 31 requires no less than "probable
cause" to measure the lawfulness of the arrest either before
trial, or after conviction when evidence upon which he was con-
victed was allegedly seized incident to an unlawful arrest this
standard is surely too high as a measure of civil liability. A
policeman whose property and livelihood depend on split-second
assessment of "reasonable grounds" or "probable cause" will
surely err on the side of caution. In fact, an aspirant to the
police force who is told that he must act upon peril of a court's
passionles evaluation of such intensely uncertain decisions will
surely forego such precarious employment.
Despite the dangers of broad liability, the courts have generally
been unwilling to expand defenses available to the police officer.
Thus, there is a split of authority on the seemingly obvious
question whether a policeman is liable for false arrest when the
statute which defined his "probable cause" for making the arrest
is subsequently declared unconstitutional. 32 And where the ques-
372 Report of the Task Force on Law and Law Enforcement
tion of subsequent invalidation is not involved, the courts have
generally refused to allow the officer a subjective defense of
good faith that he made an honest mistake in judgment in
believing the arrest was justified. 33 The issue of good faith does
become relevant with respect to mitigation of punitive or exem-
plary damages, 34 but if the arrest was made without probable
cause, as a matter of law, liability for false arrest follows by
definition of the cause of action. 35 Parenthetically, an officer mak-
ing an invalid arrest in bad faith is liable for malicious prosecu-
tion in addition to false arrest or imprisonment. 36
Predictably, however, the courts have utilized other devices
to thwart the disastrous implications of literal enforcement. In
the first place, procedural and evidentiary rules are employed to
narrow the class of plaintiffs to whom the remedy is available.
For example, proof of prior reputation is admissible to impeach
plaintiff's credibility; 37 in one state, conviction for perjury or
subornation of perjury disqualifies the potential plaintiff as a
witness for any purpose ; 38 conviction of the offense for which the
plantiff was illegally arrested establishes a presumption, in some
states conclusive, of probable cause for the arrest; 39 and im-
prisonment after conviction precludes the plaintiff practically,
if not legally, from filing or prosecuting his suit. 40 Second, the law
of damages is utilized for the same purpose. Thus, proof of prior
reputation is also admissible to mitigate damages, either by
demonstrating lack of any additional injury thereto 41 by showing
that defendant had "cause" although not "probable cause" to
arrest the plaintiff. 42
By erecting such formidable barriers to recovery, however,
courts threw the baby out with the bath. As a substantive matter
they correctly chose to minimize the tort's deterrent value out
of fear that it would be too effective. Yet they accomplished this
result in a way which precluded recovery in appropriate cases by
those for whom redress is essential.
Malicious prosecution is the groundless institution of criminal
proceedings by the defendant against the plaintiff. 43 The action
is closely related to false arrest and the courts have sometimes
confused the two. The basic difference lies in existence of a
valid legal authority for the restraint imposed. If the defendant
has complied with the requirements of the law by swearing out
a valid warrant which is not void on its face, he cannot be liable
for false arrest. 44 But he is liable for malicious prosecution if
the plaintiff can show that he sought the arrest without probable
cause, with malicious intent and that the proceedings were ter-
minated in plaintiff's favor. 45
Obviously, the tort is fairly limited. Since ill-will is its basis,
it is not particularly useful in regulating police conduct. In
addition the police have generally been held immune from such
Securing Police Compliance With Constitutional Limitations 373
suits when acting within the scope of their duties, 46 although it
has been held that where the policeman himself initiates the
complaint or where he concocts false evidence, he may be liable. 47
Theoretically, any allegation of illegal invasion of a person's
home or illegal seizure of property in his possession states a
cause of action for trespass to land or chattels. As in the case
of false arrest, it is clear that a policeman will not be liable for
searches pursuant to a defective warrant issued by a court of
competent jurisdiction since he may assert a defense of "legal
process" when the warrant is "fair on its face." 48 Because of
the dearth of police tort actions asserting a trespass as the sole
ground of recovery, 49 however, there has been no adequate state-
ment of the officer's defense where the search was made without
a warrant. In any event, as a practical matter the trespass remedy
has been "completely impotent" 50 as a means of deterrence or
redress because of its damage limitation. 51
Although injury is not an element of the plantiff's cause, the
measure of damages is simply the injury to physical property, 52
with the possibility of punitive damages in some states if the
plantiff is able to show malice or ill-will on the part of defend-
ant. 53 Thus, unless the erring officer has been carelessly destruc-
tive or overtly ill-willed, plaintiff's victory is only nominal. Sure-
ly, such a tort offers little inducement to sue, and where redress
is really needed, the plaintiff usually has a cause for battery or
false arrest.
Assault and battery, however, has not been much more useful.
At common law, a policeman has no more privilege to exercise
force than a private citizen. Like any other person he may
exercise the amount of force he reasonably believes necessary
to defend himself or to effect the lawful arrest of a resisting or
fleeing suspect. 54 He may likewise employ force when necessary
to prevent a crime if he reasonably believes the suspect is
participating or is about to participate in a breach-of-the-peace
misdemeanor, riot or felony. 55 For any use of force beyond
these limitations, the officer must respond for all damages proxi-
mately resulting, both to the individual pursued and to the person
and property of innocent bystanders) 56 Nevertheless, police
brutality actions have rarely been successful except when ap-
pended to false arrest actions. 57
Even though substantive tort law thus theoretically permits
recovery for some egregious acts of police misconduct, the
chances of adequate recovery are so slim that there is no induce-
ment to sue.
The initial defect in civil recovery both as a means of redress
and as deterrent to police misconduct is the cost of suit. As the
Wickersham Commission noted in 1931 : ". . . in case of persons
of no influence or little or no means the legal restrictions are not
374 Report of the Task Force on Law and Law Enforcement
likely to give an officer serious trouble." 58 Unfortunately, litiga-
tion is most costly, and consequently least attractive, in cases
where redress is most needed brutality cases in which recovery
is likely to depend on the resolution of disputed factual issues
necessitating a protracted trial.
If lower class litigants are to bring suit at all, their costs must
be borne either by Legal Aid offices or lawyers operating on
contingent fee. Yet, neither source can handle a large volume of
cases and must of necessity choose only those most promising of
success. Unless the state or local government bears at least part
of the cost of litigation, regardless of outcome for example
by hiring an attorney to represent indigents aggrieved by police
misconduct civil suit will be too sporadic to function adequately
as either a deterrent or a means of redress. 59
Time is a most formidable barrier to suit, especially among
the poor. Because of crowded court dockets, years may pass
before a case is decided. The prospect and a limited one at
that of relief at some distant time is probably not strong enough
to evoke an initial commitment, especially in light of the costs
which might accrue. It should also be added that the protracted
nature of litigation is also a major reason why civil suit is
currently an inadequate substitute for or deterrent to violence as
an outlet for citizen grievances against the police. A prospect, or
even a promise, of damages two years hence is not likely to
mitigate the incendiary effect of gross police misconduct which
often has immediately preceded civil disorder.
Another problem is the difficulty of establishing damages even
if liability is proven. As early as 1886, the Supreme Court noted
that recovery of a sum sufficient to justify a police tort action is
dependent on the "moral aspects of the case." 60 But the usual
plaintiff lacks the "minium elements of respectability" 61 to claim
or recover for injury to reputation. Similarly, minority plain-
tiffs do not often recover punitive damages from predominantly
middle-class juries, especially when such damages cannot be dis-
guised as reparation for injury to reputation. Thus, since re-
covery is limited to actual damage for the most abused class of
citizens, the Wickersham Commission conclusion, that a civil
action has little deterrent value where it is most needed, is still
true today.
To this point, we have endeavored to show that state civil
suits are inadequate either to placate most citizens aggrieved
by police misconduct or to deter police abuse. The serious ques-
tions remain whether such suits would become effective deterrents
if the stated defects were cured and to what extent this result
would be achieved to the detriment of legitimate law enforce-
ment efforts.
Even if the possibility and extent of recovery were substan-
Securing Police Compliance With Constitutional Limitations 375
tially increased, the vindicated plaintiff would often be possessed
of a meaningless judgment : police are not wealthy nor are they
often bonded. 62 More important, if liability attached too readily
or if there were any appreciable possibility that it would penalize
honest mistakes, law enforcement would surely suffer. Complete
individual liability for tortious conduct would not only discourage
persons from becoming police officers but would also severely
circumscribe the vigor and fearlessness with which they perform
their duties.
With increasing frequency, commentators have urged that this
dual defect unredressed injury and deterrent overkill be cured
by municipal or state liability for police torts committed in the
performance of their duties. 63 Except for the additional depletion
of already barren state and local treasuries, the effects of govern-
mental liability would be uniformly beneficial. It would surely
facilitate redress and is a necessary condition for effective deter-
rence. To put it bluntly, it would slap the right wrists i.e., at the
level where police policy is made. The Department, under pres-
sure from fiscal authorities, would very likely establish and
enforce firmer guidelines through internal review and purge
recurrent offenders.
On the other hand, it is arguable that governmental liability
for police torts is not a sufficient condition for effective deterrence.
Some police illegality is an inevitable concommmitant of law
enforcement ; 64 and departmental policymakers, according to their
own scheme of values, may find it prudent to violate now and
pay later. Such a decision is especially likely in situations where
the exclusionary rule does not apply and there is no other deter-
rent; i.e., where prosecution is not contemplated and conviction
is not the motivating factor.
In any event, a majority of states have refused to waive gov-
ernmental immunity in police tort cases 65 despite repeated urgings
by a multitude of legal scholars. 66 And it is unlikely that they will
do so at least until the scope of liability is sufficiently limited.
Thus, the most fruitful approach is to abandon delusions of
broad deterrence and substantial redress and to concentrate on
the grosser forms of abuse where the tort remedy can be useful.
Actual injury caused by serious breaches of duty committed in
utter disregard of proper standards of police conduct should be
redressed by the courts in tort suits. The imperatives of such
an approach are utilization of a good faith defense and more
extensive governmental assumption of liability.
DAMAGE REMEDIES UNDER FEDERAL LAW
In addition to his state common law tort remedies, a citizen
376 Report of the Task Force on Law and Law Enforcement
aggrieved by police misconduct may have a cause of action
under 42 U.S.C. 1983 which provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities se-
cured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress.
The statute in its present form is substantially unchanged from
its passage in 1871 as the civil section of what is popularly
known as the Ku Klux Act. 67 It is clear that this statute orig-
inally was designed to inhibit and give a remedy for the wide-
spread abridgement of Negro rights that characterized the
Reconstruction period in the South. Recently, however, the Su-
preme Court has read the broad statutory language to authorize
civil tort suits in federal courts against state law enforcement
officers, 68 and a steady stream of such cases now flows through
the lower federal courts. 69
Section 1983 was rarely utilized until the 1940s when two
significant Supreme Court cases, United States v. Classic 70 and
Screws v. United States, 11 revived it from its century-long
dormancy. In Classic the Supreme Court rejected a contention
that "under color of law" required action taken pursuant to
a state statute and held instead that "misuse of power, possessed
by virtue of state law and made possible only because the wrong-
doer is clothed with the authority of state law, is action taken
'under color of state law." 72 Thus it became arguable for the
first time that any illegal action of a law enforcement officer
could fit within the statutory language of what is now Section
1983 i.e., any act of a man wearing a badge would be action
"under color of law." This reading of the Classic opinion was
reenforced by the Court's 1945 decision in Screws v. United
States, which equated "under color of law" with under pretense
of law. 73
Both of these cases had dealt with the scope of the companion
criminal provision to Section 1983, and it was in 1961 that the
Court in Monroe v. Pape, 74 finally breathed life into the civil
provision.
In that landmark case, James Monroe alleged that 13 Chicago
policemen broke into his home at 5 :45 a.m., routed his whole
family from bed, ransacked every room in his house, detained
him at the police station for 10 hours on "open charges," and
finally released him without filing criminal charges against
him. The Supreme Court, holding this complaint actionable un-
Securing Police Compliance With Constitutional Limitations 377
der Section 1983, adopted the Screws and Classic definition of
"under color of law," and noted that even action wholly contrary
to state law is nevertheless action "under color of law" if the
policemen are clothed with the indices of authority. Moreover,
the Monroe majority held that since Section 1983 does not
include the word "willfully," a complainant need neither allege
nor prove a "specific intent to deprive a person of a federal
right." 75 Finally, the Court reasoned that since one of the pur-
poses of Section 1983 was to afford a federal right in federal
courts, the federal remedy is supplementary to any existing state
remedy and the state remedy need not be exhausted before its
invocation.
The major issue that remained after the sweeping Monroe
decison was whether some degree of bad faith or other fault
in the deprivation of the citizen's constitutional rights is an
element of the federal cause of action under Section 1983. The
court confronted this issue in its 1967 decision in Pierson v.
Ray. 1& In that case petitioners, a group of Negro and white
clergymen were arrested for sitting-in at a segregated inter-
state bus terminal in Mississippi. Subsequent to their arrest and
conviction, the statutory provision upon which their arrest had
been based was declared unconstitutional and their cases were
remanded and later dropped. In their subsequent suit for false
arrest and violation of Section 1983, the Supreme Court pro-
claimed that the defenses of "good faith and probable cause"
were available to the policemen-defendants under Section 1983
just as they were under Mississippi law of false arrest. Although
the Pierson decision established that policemen are not strictly
liable for unconstitutional activity, the scope of the defenses
which it recognized is not yet clear. On the other hand, the
federal defenses could be tied to state law, thereby attaching
only in those states which allow a good faith defense in the
subsequent invalidation context, as did Mississippi in Pierson.
On the other hand, it would appear that the Court contemplated
something broader a federal standard of fault not tied to state
law or to any particular factual context, and most observers
have so assumed.
Because of the difficulty of segregating "probable cause"
from the lawfulness of the conduct itself, and because "good
faith" suggests a completely subjective standard, we suggest
that these labels are inappropriate tools for defining the proper
defense in the present context. The purpose of a defense in
a police tort suit, under state law or under Section 1983, should
be to immunize conduct illegal only because of an honest mis-
take in judgment or an unforeseeable change in the law. The
proper standard, and one which both state and post-Pierson
lower federal courts in fact have been applying, 77 is whether
378 Report of the Task Force on Law and Law Enforcement
the policeman's response was "reasonable" in light of the cir-
cumstances, both legal and situational, as he perceived them.
An additional question remaining after Pierson is the scope
of police activity covered by the "rights, privileges, or immuni-
ties" clause of Section 1983. It clearly covers illegal searches
or seizures and unconstitutional arrests. And there is some
evidence that it also covers gross acts of police brutality, con-
duct which denies due process because it shocks the conscience. 78
In any event, however, Section 1983 cannot be employed to
regulate the day-to-day conduct of the policeman on patrol
the seemingly trivial acts of harassment and misunderstanding
which in gross, may elicit violence against the police by ghetto
residents. 79
Nevertheless, Section 1983 like the state tort remedy
is a potentially useful device for compensating the individual
citizen substantially injured by unlawful police action. To be
sure, an action under Section 1983 is subject to all the intrinsic
weakness of any tort remedy limited personal assets of the
police, no provision for payment of damages from municipal
or state funds, the expense of maintaining the suit, the difficulty
of establishing damages, the disadvantaged position of the usual
plaintiff in the community, and the threat such assessments
against individual policemen pose to vigorous and efficient law
enforcement efforts. 80 Despite these inherent limitations, how-
ever, Section 1983's federal remedy for deprivation of constitu-
tional rights does permit compensation of citizens whose person
or property is significantly damaged due to clearly unlawful
police activity.
Many commentators on Section 1983's use to control police
conduct claim its application must be limited to the egregious
case so that it does not hamper legitimate law enforcement by
penalizing the policeman for mere error in judgment and honest
misunderstanding. 81 We agree with this goal for the federal
remedy as well as the state remedies, but argue that the present
"probable cause and good faith" defense available to the police
under Pierson v. Ray as applied in subsequent cases, together
with the law of damages under this section, in fact limit the
scope of the remedy. Our conclusion, then, must be that, while
the federal civil damages remedy cannot be a regulator of
everyday police conduct, it can provide a remedy to individuals
severely injured by outrageous instances of police illegality. 82
As an important and essential supplement to other devices for
controlling police violence, it should be implemented at the
federal level by rationalized damage rules and docket priority
and at the state level by municipal asumption of liability and
cost of suit.
Securing Police Compliance With Constitutional Limitations 379
INJUNCTION
The injunction offers the prospect of immediate relief from
unconstitutional conduct and a powerful deterrent from engag-
ing in that specific conduct. Simply as a matter of judicial
equitable prerogative, such relief is easily justified. The remedies
at law for this threatened or continuing deprivation of liberty
are at present clearly inadequate except in a limited context,
a conclusion emphatically asserted by the Supreme Court in Mapp
v. Ohio 8 * and reaffirmed in our discussion above. The injury may
surely be irreparable, both to the plaintiff and the community. 84
But injunctions issued against individual police officers to
refrain from future violations, in addition to raising much
the same substantive and practical problems noted above in con-
nection with damages, also present an insuperable enforcement
problem. The order must cover all types of illegal conduct or
it cannot operate fairly; yet if an injunction issued upon proof
of any illegality whatever, it would replace internal police
disciplinary procedures with inflexible judicial oversight of
the conduct of all police officers. Since the court's only sanction
is contempt, it would be extremely heavy-handed and even more
disruptive of legitimate law enforcement efforts than effective
and broad damage remedies. Such a remedy represents the worst
of all possible worlds.
Thus, instead of utilizing the remedial force of the injunc-
tion in a way destructive of law enforcement, a court must
look to those who make the rules which the individual police
officers are supposed to obey. The goal of injunctive relief
should be to induce the Departments to establish guidelines con-
sistent with constitutional mandates and to use their internal
disciplinary procedures to enforce these rules. Whether this
goal can be achieved by equitable relief issued by either state
or federal courts is the subject of this section.
The various state courts which have faced the question
have left no clear statement of the law. In fact, there seem to
be two separate lines of authority. Some courts have emphasized
the institutional irresponsibility of injunctive interference with
law enforcement activity. 85 Under this view, the plaintiff should
be left to whatever civil remedies at law he has available or
to his defenses in a criminal prosecution should one be brought.
Other courts, perhaps a majority, have felt no institutional
hesitations, but have placed heavy burdens on the plaintiff to
show clearly lack of a reasonable basis for the allegedly illegal
police actions and the presence of malice or bad faith. 86 Thus,
even these courts have interfered only where the police are
pursuing a clearly illegal course of conduct against an identi-
fiable plaintiff or group of plaintiffs. 87
380 Report of the Task Force on Law and Law Enforcement
Section 1983, discussed above, also authorizes the federal
district courts to hear suits in equity against police for conduct
invading constitutional rights. 88 Such suits have rarely been
brought, however. 89 The United States Supreme Court approved
the remedy in Hague v. C7O 90 in 1939, where it affirmed an order
against a Mayor, Chief of Police and others enjoining them
from continuing an antiunion campaign of harrassing arrests,
deportation of organizers and suppression of union circulars
and public meetings. Of the lower court decisons which have
employed this remedy, three enjoined blatant infringements of
First Amendment rights committed under the guise of mainte-
nance of public order but falling short of arrest of the speakers ; 91
and two, like Hague itself, enjoined schemes of conduct including
attempts to enforce the law against plaintiffs but which never-
theless inhibited First Amendment rights. 92 Only two cases have
involved injunctions for violations of criminal safeguards with
no First Amendment overtones.
In the first, Refoule v. Ellis?* the police had four times detained
the plaintiff without a warrant for extended periods of time, ques-
tioned him in relays, utilized force to coerce a confession and
conducted other similarly objectionable activities. The Georgia
District Court issued an injunction against further warrantless
detentions, questionings, beatings and other specific illegal
conduct. In Lankford v. Gelston?* the Fourth Circuit ordered
the District Court to enjoin the Baltimore Police Department
from continuing a thirteen-day search of ghetto residences
without either warrant or consent based solely on anonymous
phone tips. 95
Refoule and Lankford are the only reported cases suitable for
testing the validity and scope of the power of the federal courts
to interfere with state and local law enforcement activities.
In these cases, the courts acknowledged the principles of not
interfering with administration of the criminal law, 96 but af-
firmed that injunctions against such clear violations of constitu-
tional rights could not possibly interfere with legitimate law
enforcement activities. 97 And the courts were surely correct.
These cases, so long as they could be brought to judicial attention,
cried out for relief. Any police chief or officer continuing the
illegal conduct in defiance of the court's order would have been
deserving of a contempt citation.
The common elements of such egregious cases illustrate both
the validity of the remedy and the limited scope of its employ-
ment: the department must be engaged in a clearly unconstitu-
tional course of conduct directed against an identifiable person or
class of persons.
Nevertheless, on recent commentator 98 has urged that the
injunctive remedy be utilized not only to prohibit deliberately
Securing Police Compliance With Constitutional Limitations 381
ordered violations of constitutional rights as in Lankford and
Refoule, but also to require affirmative actions by Department
superiors to prevent recurring violations which they have
"passively tolerated." Although this proposal successfully iden-
tifies the crucial need in this area the effective operation of
departmental disciplinary procedures its attempt to convert the
courts into supervisors of police discipline is misguided.
Apart from a difficult problem of statutory authorizaiton,
the basic substantive defects are, first, definition and proof of
violation, and, second, order-framing and sanction. On the first
issue, the dispositive inquiry is whether the departmental su-
periors have taken adequate steps to enforce compliance with
constitutional mandates. Such an evaluation would encompass
policy guidelines, complaint mechanisms, and disciplinary pro-
cedures ; yet judicial review of the adequacy of complaint process-
ing and disciplinary procedures would be neither colorably judi-
cial nor susceptible to remotely managable standards."
As to the second question order-framing, the author pro-
poses that the court first issue a general order directing the
Commisisoner to correct the pattern of tolerated violations by
altering his enforcement procedures in a way which achieves
the desired result with a minimum adverse effect on the morale
and efficiency of his Department. 100 The author assumes that a
good faith effort by a capable Commissioner will quickly cure
the ill and relieve the court of the difficult burden of making
good its promise to reduce misconduct. Unfortunately, however,
failures will be widespread, and the courts will sometimes have to
frame a second, more specific order, itself establishing the
Departments disciplinary procedures; 101 and the author himself
acknowledges that "such orders would seriously interfere with
the Police Commissioner's management of his department and
a court should make every effort to minimize the dangers inherent
in such interference." 102
In summary, although state cases are ambiguous and federal
cases are sparse, it would appear that the injunction at either
level is another useful fringe remedy. Where immediate relief
from a clearly unconstitutional course of conduct against identi-
fiable persons is prayed for, the injunction should issue. Other-
wise the courts should not interfere directly with the enforcement
of the criminal law.
CRIMINAL SANCTIONS
Although both state and federal statute books include criminal
sanctions for illegal police conduct such as false arrest and
trespass, they are rarely employed. 103 It is well established that
in criminal prosecutions for false arrest the defendant must
382 Report of the Task Force on Law and Law Enforcement
have criminal intent and that his good faith is a complete de-
fense. 104 At common law no trespass to property is criminal
unless it is accompanied by a breach of the peace. 105 Moreover,
most states require criminal intent as an element 1G6 of the crime,
either by statute or by judicial interpolation where the statute
itself is silent. 107 Where intent is an element, the defenses of
good faith 108 or color of title will lie unless there has been a
breach of the peace. 109
The dearth of case law on the subject indicates the impotency
of criminal prosecution of police officers as a remedy for their
misconduct. Professor Foote, a leading authority on judicial
remedies against the police, could find only four cases all for
false imprisonment for the period 1940-55. no We have been
unable to unearth any additional reported cases for the subse-
quent 13 years. No authoritative explanation has been given for
the absence of prosecution for police offenses, but the reasons
are not difficult to surmise. Prosecutors are probably reluctant
to enforce these dormant criminal sanctions against police of-
fenses because they anticipate, in our view correctly, a detri-
mental effect on law enforcement which is the goal of both
departments, and because they consider the punishment too
harsh.
As a supplement to state criminal remedies for police mis-
conduct, 18 U.S.C. 242 imposes a federal penalty on anyone
who, under color of law, willfully deprives a person of his
constitutional rights. 111 Because Section 242 is a criminal statute
it has been narrowly construed. The Supreme Court in Screws v.
U. S., n2 upholding this statute against an attack that it was
void for vagueness, interpreted the statutory requirement of
willful violation to mean that the defendant must have had or
been motivated by a specific intent to deprive a person of his
constitutional rights. 113
This narrow construction of the statute together with the
reticence of prosecutors to bring actions against the police 114
have rendered Section 242 an impotent deterrent to police
violence. Although there have been a handful of cases brought
under this provision and some convictions, 115 this sanction
has been applied only to the most outrageous kinds of police
brutality. 116 Because the application of criminal sanctions to
police misconduct is justified only when the policeman is clearly
acting as a lawless hoodlum, 117 it is totally unrealistic to antici-
pate that this federal criminal provision will ever be transformed
so as to control the conduct of the police.
Unlawful search and seizure, malicious procurement of a
warrant and excess of authority under a warrant have been
punishable as misdemeanors under federal law for decades. 118
Yet the annotations following these statutory provisions dealing
Securing Police Compliance With Constitutional Limitations 383
with illegal police activity reveal no decided cases. That these
sanctions have been completely ignored for so long graphically
underscores the need for remedies other than state and federal
criminal statutes to deter and if necessary punish arbitrary
police conduct.
As a final part of this synopsis of criminal provisions affecting
the police, some mention should be made of the long-standing
suggestion that judges use their contempt power to discipline
offending officers. 119 The contempt sanction, we have concluded,
is much too harsh. Moreover, since judges are probably institu-
tionally incapable of discovering on their own motion instances
of police misconduct, this sanction would be applied only when
the given facts in an adversary proceeding clearly indicate
unlawful police action. Yet we already have better legal remedies
for these egregious instances of police violence. Finally, since
the proposed "contempt of the Constitution" 12 is an indirect
criminal contempt, the accused police officer would probably have
a right to a separate jury trial. 121 The prospect of a second trial
militates further against stretching the contempt power to these
frontiers never envisioned for it.
To this point, we have concluded that the judiciary with
some changes in substance and procedure is the appropriate
institution to deter and redress clear cases of police miscon-
duct. The exclusionary evidence rule is a just and potent weapon
to enforce constitutional mandates where a conviction is achieved.
State and federal damage remedies, if rationalized and adequately
facilitated, can deter and redress egregious and reckless police
misconduct unattended by successful conviction. And injunctive
relief may prove valuable in limited contexts where there has
been an unlawful course of police conduct.
At the same time, we have also concluded that continuous
administrative surveillance is better equipped than sporadic
judicial oversight to cope with less extreme forms of police
misconduct conduct which is imprudent though not outrageous.
Fair and speedy extra-judicial review of allegations of police
harassment and other incendiary police practices could provide
an essential outlet for citizen frustrations and dispel the wide-
spread ghetto belief that police are characteristically arbitrary.
INTERNAL REVIEW
Every major police department has formal machinery for
processing citizen complaints. To the extent that such machinery
is fairly and effectively invoked, it can discipline misbehaving
officers and deter the misconduct of other policemen. But in prac-
tice, internal review is largely distrusted by outsiders 122 for
a variety of reasons.
384 Report of the Task Force on Law and Law Enforcement
For internal review procedures to be meaningufl, complaints
against the police must not only be readily accepted, but actively
encouraged. Yet much criticism of police review has been directed
at the hostile response of some departments to civilian complaints.
In some instances, complex procedural formalities discourage
filing of grievances. 123 Some departments will disregard anony-
mous telephone complaints and a few require sworn statements
from complainants. 124 Allegations of police brutality, in particu-
lar, are often regarded as affronts to the integrity of the force
which demand vigorous defense. 125 Accordingly, certain depart-
ments have in the past charged many complainants with false
reports to the police as a matter of course, 126 or have agreed to
drop criminal charges against the aggrieved party if he in turn
abandons his complaint. 127 While most departments have abol-
ished such practices, many potential allegations of police mis-
conduct are apparently still withheld because of fear of retalia-
tion. 128
An impartial acceptance of all complaints against the police
is necessary to instill confidence in a police review board. In
fact, an increased volume of complaints filed with the police
might often indicate that a department is winning rather than
losing the trust of a community. To this end, the Police Task
Force of the Crime Commission recommended that police depart-
ments accept all complaints from whatever source, process com-
plaints even after complainants have dropped their charges, and
advertise widely their search for police grievances of all types. 129
Many urban police departments have apparently adopted or
already complied with these proposals. 130
Although nearly all departments investigate all complaints,
about half entrust the task exclusively to the local unit to which
the accused officer was assigned. 131 The central organization
usually supervises such investigations in varying degrees, but
the relative autonomy of local units in gathering evidence con-
cerning a complaint can both strain objectivity and engender
further police misconduct. 132 Since investigative findings deter-
mine whether a complaint will be processed further or dismissed
as groundless, a local investigating team is afforded the oppor-
tunity to clear its working comrade. Accordingly, the investiga-
tion may at times be designedly haphazard, or the complainant
may be harassed into dropping his charges or a potential witness
may be browbeaten into not testifying. 133
Special internal investigative units for complaints of police
misconduct are common to many departments, and should be
the established norm, particularly for large urban forces. Such
internal special units would presumably face less conflict of
interest than local units in dealing with a policeman's conduct.
An outwardly more objective inquiry might reduce grounds
Securing Police Compliance With Constitutional Limitations 385
for public suspicion of police investigation of their own mis-
conduct.
A sizable minority of departments do not provide formal ad-
versary hearings for allegations of even the most egregious police
misconduct. 134 In such instances, the police chief or commissioner
will usually determine from investigative findings whether an
officer should be disciplined. In organizations where hearings are
conducted before a police review board, the format varies. It
has been found that almost half of departments that provide
hearings hold them secretly, and one-fifth deny the complainant
rights to cross-examine witnesses or bring counsel to the hear-
ings. 135 Such secrecy and lack of procedural safeguards inevitably
foster suspicion about the fairness of internal review. 136 Fur-
thermore, the recommendations of the review boards, which
usually are implemented by the police chief, are seldom disclosed
to either the public or the complainant. 137 Such a practice deprives
hearings of their value in promoting community relations. For
a full explanation of a dismissed complaint could publicly vindi-
cate the police officer who in fact behaved responsibly, and the
news of actual disciplinary action could placate citizen indigna-
tion over police misconduct. Thus if hearings are open to the
public, quasi-judicial trial procedures are followed, and review
board decisions fully publicized, the popular image of the police
could be profitably enhanced. 138
A major criticism of internal review is that it seldom- pro-
duces meaningful discipline of persons guilty of police miscon-
duct. 139 Even when an officer is disciplined, the punishment is
often so light as to be a token that aggravates rather than
satisfies the grievant. 140 By contrast, many departments impose
relatively severe penalties for violations of minor internal regu-
Itaions. Thus tardiness or insubordination may warrant an auto-
matic suspension that is more onerous than the sanction for
physical abuse of a citizen. 141 The frequency of rigorous internal
discipline for minor departures from departmental regulations
magnifies the relative failure of police departments to discipline
an officer for abusive treatment of a citizen. The inference is
that internal review is more attuned to enforcing organizational
disciplines than redressing citizen grievances.
Internal review is undoubtedly the quickest and most efficient
method of regulating the conduct of peace officers. 142 It is perhaps
axiomatic that organizational superiors are in the most favorable
position to control their subordinates. Similarly, a police chief
is probably best qualified to formulate the standards for police
conduct. He also can utilize the best available investigative
facilities plus his unique expertise in police operations to mete
out approprate disciplinary measures. A punishment decreed by
an insider is likely to be accepted by both the miscreant officer
386 Report of the Task Force on Law and Law Enforcement
and the department as a whole. On the other hand, control im-
posed from the outside is bound to be more sporadic and hence
less effective than persistent self-discipline. Furthermore, con-
stant second-guessing by strangers might undermine police
morale and induce the kind of bureaucratic inertia that seems to
plague several other governmental agencies sapped of their
local autonomy.
Despite the inherent advantages of self-regulation, however,
its difficulties in projecting an image of fairness with regard
to complaints from the citizenry suggets that it should be sup-
plemented by some form of external review. Whether or not
internal review procedures are conducive to objective inquiry,
the mechanism is seldom invoked by those minority groups which
encounter the police most directly and frequently. 143 Since the
police cannot redress an aggrieved citizen with money damages,
the conspicuously rare punishment of policemen on the basis
of outside complaints can create the popular impression that
police review is a sham designed to appease rather than relieve
the victims of police violence. Furthermore, this failure to win
public approval deprives internal review of its efficacy as a forum
for vindicating officers slandered by groundless complaints. 144
The concept of internal review is also limited by the degree
to which a departmental superior can extricate himself from the
conflict of interest he faces in judging citizen complaints against
the police. To be fair, he must suppress a natural feeling of
loyalty toward his subordinates. On the other hand, he faces the
possibility that concession to citizen demands will undermine the
morale of his organization. Thus even the conscientious police
commissioner may encounter difficulty in properly handling
complaints. Police departments have a self-interest like any other
entity, and if a police department tacitly overlooks misconduct
by its patrolmen, then such a department cannot be expected to
condemn itself publicly through internal review mechanisms. 145
In such a case, only an external organization can offer con-
sistently impartial and objective review of allegations of police
misconduct.
CIVILIAN REVIEW BOARDS
Dissatisfaction with both internal and judicial processing of
police misconduct complaints prompted a few cities to experiment
with civilian review boards. These boards, sitting independently
of the police structure, adjudicated the merits of citizen griev-
ances, either dismissing them as groundless or recommending
that departmental superiors discipline the miscreant officer. Such
external review was designed to project an appearance of fairness
unattainable by internal mechanisms. At the same time, the
Securing Police Compliance With Constitutional Limitations 387
civilian review boards were able to pass judgment on discour-
teous or harassing police practices which do not constitute
judicially remediable wrongs but which nevertheless infuriate
the grievant and intensify community hostility toward the police.
Yet the boards did not purport to displace preexisting channels :
the ultimtae power to discipline remained with the police them-
selves, and the courts' jurisdiction over complaints was never
abridged.
Civilian review boards have operated at one time or another
in Philadelphia, New York City, Washington, and Rochester.
The Washington board, however, could entertain only complaints
referred to it by the police commissioner, 146 and the jurisdiction
of the Rochester board was limited to allegations of unnecessary
or excessive force. 147 Therefore, the New York and Philadelphia
experiences contribute more expansively to an examination of
civilian review.
The New York Civilian Complaint Review Board (CCRB),
created by executive order in July 1966 and abolished by popular
referendum four months later, consisted of four civilians ap-
pointed by the Mayor and three policemen named by the police
commissioner. 148 The CCRB was empowered to accept, investi-
gate, and review any citizen complaints of police misconduct
involving unnecessary or excessive force, abuse of authority, dis-
courteous or insulting language, or ethnic derogation. 149 Upon
receipt of a complaint, the board directed its specially assigned
investigative staff of police officers to interview the complainant,
the accused policeman, and any witnesses. If the investigation
report revealed no serious dispute on the facts, a conciliation
officer attempted to negotiate an informal settlement. If the police-
man had acted properly under the circumstances, the board
explained to the citizen that his grievance stemmed from a mis-
understanding of the situation or of police duties. Where the
officer had been mistaken or neglectful, or the injury had been
minimal, the complainant was assured the misconduct had been
amply considered and would not be repeated. Where both parties
were at fault or where the citizen was particularly incensed,
a joint confrontation of the parties was arranged which would
hopefully result in mutual understanding and apologies. 150 If a
complaint was conciliated or deemed unsubstantiated, the accused
officer was expressly notified that the complaint would not appear
on his record. 151
When the seriousness of the alleged offense or a heated dispute
over the facts precluded informal conciliation, the CCRB con-
ducted a formal hearing, at which both complainant and police-
man had rights to representation by counsel and cross-examina-
tion of witnesses. 152 The board made findings of fact, upon
which it either dismissed the complaint or recommended
388 Report of the Task Force on Law and Law Enforcement
"charges" to the police commissioner. No specific disciplinary
measures emerged from the CCRB, whose final rulings recom-
mended further departmental consideration of a complaint rather
than punishment. 153
The New York CCRB elicitsd 440 complaints during its
4-month existence, as compared to the approximate annual
average of 200 received by the police-operated Complaint Review
Board prior to 1966. 154 Nearly half the grievances alleged unnec-
essary force, but a substantial number involved discourtesy and
abuse of authority. 155 Significantly, many of the complaints
emerged not from the criminal context, but from police involve-
ment in private or family disagreements. 156 That only half the
complaints were filed by members of minority groups could be
attributed to insufficient publicity and the CCRB's short tenure. 157
Of the 146 complaints ultimately processed by the CCRB, 109
were dismissed after investigation, 21 were conciliated, 11 were
referred elsewhere, 4 culminated in recommended "charges,"
and one resulted in a reprimand from the board. 158
The brevity of the New York experiment defies meaningful
evaluation, but the Police Advisory Board (PAB) operated con-
tinually in Philadelphia from 1958 through 1967, when its normal
activities were enjoined. The PAB closely resembled the CCRB,
except that the Philadelphia board had no specially assigned
investigative staff, held open hearings, lacked power to subpoena
witnesses, and recommended specific disciplinary measures to
the commissioner for valid complaints. From 1958 until mid-
1966, the PAB received 571 citizen complaints, of which 42
percent alleged brutality, 22 percent harassment, 19 percent
illegal entry or search, and 17 percent other misconduct. 159
During this period, the PAB recommended 18 reprimands, 23
suspensions, 2 dismissals, and 3 commendations of police officers,
and 33 expungings of complainants' arrest records. 160 With few
exceptions, the police department coopertaed by implementing
the board's proposals. 161
The record of the PAB reveals several positive accomplish-
ments. It evidently achieved some degree of support from the
minority communities where police presence was most volatile;
one-half of all complaints were filed by Negroes in a city that was
three-quarters white. 162 Dispositions most frequently emerged
from informal settlements. 163 This conciliation process, it is pre-
sumed, permitted grievance resolutions acceptable to both citizen
and officer with a minimum of the adversary tensions normally
incident to an open formal hearing. Furthermore, the complain-
ant would often be uninterested in seeing the policeman disci-
plined ; he may have sought only an apology or eradication of an
unjustified arrest record.
The PAB also submitted an annual report to the Mayor, which
Securing Police Compliance With Constitutional Limitations 389
allowed broader expression of citizen judgment on police policies
than would usually flow from the case by case approach. The
police department followed the 1962 report's suggestion that
definitive guidelines for the proper use of handcuffs be estab-
lished. 164 In 1965 the PAB requested that the police rectify
apparent patterns of physical mistreatment of apprehended per-
sons in station houses and discourtesy directed at civilian in-
quiries. 165 The annual report thus enabled the PAB to expose the
most persistent sources of citizen irritation in the interest of
enabling the police both to improve their services and to enhance
their public image. Finally, a prominent Philadelphian has noted
he remembers no occasion prior to the board's operation in which
the police department had ever disciplined an officer solely on the
basis of a civilian complaint. 166
The successes of civilian review have been counterbalanced by
marked failures, some of which are probably unique to the Phila-
delphia experience. Few complaints were filed with the PAB.
The number exceeded 100 only in 1964, and the annual rate of
complaints received evinces an erratic, rather than an upward
trend. 167 The diminutive community response to the board was
partly attributable to its lack of publicity. As a result of limited
press coverage and a non-existent publicity budget, many citizens
knew nothing of the board's operation or even its existence. 168
There is also suspicion that some policemen actively discouraged
complaints on infrequent occasions. 169
In addition to being relatively ignored by the citizenry, the
PAB encountered difficulties maintaining its impartial image.
The board often compensated for an indigent complainant's in-
ability to secure counsel by developing the case for him during
hearings. 170 This procedure might at times have induced a police-
man to suspect the board was biased against him. Positing all
investigative authority over civilian complaints in the police de-
partment not only advertised the PAB's dependence on police
rather than civilian judgment in the critical initial inquiries,
but also produced unjustifiable delays as well. Approximately
half the investigation reports were not returned to the board
within 90 days of referral to the police department, and a sizable
backlog of unresolved cases accumulated. 172 This lag, combined
with other procedural delays, partially explains why many citi-
zens failed to follow their initial complaints through to ultimate
disposition. Finally, the PAB, having been created by mayoral
fiat in 1958, was a political creature of unascertainable life and
tenuous authority. Frictions with the mayor and a court chal-
lenge of its legality engendered periods of uncertainty and com-
promise in the board's early history, 172 and normal board opera-
tions have been suspended since mid-1967, when the Fraternal
Order of Police successfully enjoined its hearings. 173
390 Report of the Task Force on Law and Law Enforcement
Apart from the particularized shortcomings of the PAB in
Philadelphia, its record reveals institutional deficiencies that will
plague any civilian review board of the future. The PAB was
subjected to the same kind of vehement police attacks that led to
the abolition of the CCRB in New York City. 174 The police
claimed that civilian review lowers police morale, undermines
respect of lower echelon officers for their superiors, and inhibits
proper police discretion by inducing fear of retaliatory action
before the board. 175 The advisory nature of the PAB and its in-
frequent disciplinary recommendations may impeach the credi-
bility of such allegation. But police hostility to the review board
cannot be underestimated.
Probably the real issue here is that, despite their monopoly on
the use of force, policemen fiercely resent being singled out
among all other local governmental officials for civilian review.
Implicit in the board's very existence seems to be an assumption
that policemen are characteristically arbitrary or brutal and
have to be watched. Since policemen apparently believe that civil-
ian review boards symbolize society's contemptuous discrimina-
tion against him, the ill feeling the institution provokes may not
be worth the benefits it may confer. Indeed, the high controversy
associated with the term "civilian review board" suggests the
appellation will not be attached to any future grievance response
agencies.
Another source of police antagonism may have been the ad-
versary nature of the PAB's hearing procedures. The adversary
process is not only costly and protracted, but when complainant
and policeman are pitted against each other in formal opposition,
hearings convey the appearance of a battleground. 176 As a conse-
quence, the civilian review board seems in some ways to aggra-
vate, rather than minimize, the frictions between police and
community. Yet the object of external review should be improve-
ment of existing police services, not establishment of a rival
police department. To the extent that a board departs from
ameliorating tensions through informal conciliation and moves
toward affixing blame in formal adjudication, it fails to improve
police-community relations.
To relate the defects of civilian review boards is not, however,
to reject the concept of civilian review itself. Both the Kerner 177
and Crime Commissions 178 recognized the importance of inde-
pendent non-judicial review of police conduct, and yet also did
not recommend that civilian review boards be established in
cities where they did not already exist. Indeed, the qualified
achievements of the review board seem to have flowed more from
the merits of external surveillance than the mechanism that
seeks to achieve it. If civilian review can be institutionalized so
as to placate rather than polarize police-citizen differences, its
Securing Police Compliance With Constitutional Limitations 391
potential may be realized. The ombudsman has been offered as
just such an institution.
THE OMBUDSMAN
The Scandinavian ombudsman system has been adopted by
several foreign governments in recent years, and the idea of
importing it to American has received much attention. 179 The
ombudsman is, most simply, an external critic of administration.
In 1807, Sweden appointed the first ombudsman, who was
charged with surveillance of all bureaucratic agencies. Finland
adopted the institution in 1919, and by 1967 it had spread to
ten other countries. 180 In the countries where he exists, the
ombudsman is usually a prominent jurist, and is aided by a staff
of lawyers. He is appointed by the national legislature, and in
some countries has jurisdiction over municipal, as well as na-
tional administrative agencies. 181
The ombudsman's goal is improvement of administration
rather than punishment of administrators or redress of indi-
vidual grievances. 182 Thus, instead of conducting formal hearings
associated with adjudication, he relies primarily on his own
investigations to collect information. He is authorized to receive
all civilian complaints against any administrator or department.
But valid complaints do not generally invoke adversary con-
frontations for purposes of adjudicating the propriety of past
conduct by an official. Rather, individual grievances serve to
alert the ombudsman to questionable administrative policies that
deserve investigation. In accordance with his focus on future
practices rather than past grievances, the ombudsman may even
initiate investigation at his own discretion in the absence of a
citizen complaint. To facilitate his inquiries, he may request
explanation from an appropriate official, examine an agency's
files, or call findings, the ombudsman may recommend corrective
measures to the agency although he cannot compel an official to
do anything. In some countries, he may also prosecute a delin-
quent official, although this power is rarely exercised. In any
case, he takes great pains to explain his conclusions to bureau-
crats, complainants, and the general public. Since the ombuds-
man enjoys almost demi-god status in some countries, adminis-
trators are likely to heed his criticisms and citizens are not apt
to be disturbed when he finds complaints groundless. Further-
more, administrators evidently feel benefitted not only by the
ombudsman's rejection of warrantless accusations, but also by
his suggestions of fairer and more efficient policies and proce-
dures. At the same time, citizens can see their grievances being
translated into broad policy guidelines.
Professor Gellhorn, an eminent proponent of the ombudsman
392 Report of the Task Force on Law and Law Enforcement
ideal, has asserted its relevance to police community relations in
America. First of all, his ombudsman would avoid the tragic flaw
of civilian review boards by accepting complaints about any local
public servants, not just policemen. 183 Furthermore, Gellhorn
contends, full processing of each citizen complaint before referral
to administrative superiors for further consideration constitutes
a cumbersome duplication of effort and an unjustifiable displace-
ment of the police department as primary investigator and arbi-
ter of charges against its members. 184 The thrust of his argument
is that meaningful improvement in police administration will
emerge not from sporadic disciplinary proceedings but rather
from imposing upon departmental superiors absolute accounta-
bility for the actions of their subordinates. 185 Therefore, the
ombudsman should initiate his inquiries only upon charges that
departmental superiors have given inadequate attention to a
complaint of police misconduct. The focus of evaluation is then
not the guilt of a particular policeman, but the policies and pro-
cedures by which police superiors have assessed a citizen's allega-
tion of such guilt. 186 The ombudsman, thus relieved of the adver-
sary adjudications that made civilian review boards so unpopu-
lar, could supposedly transcend the individual case to address
himself to the broader policies of police administration.
We reject Professor Gellhorn's proposal because it eliminates
that conciliatory process which was the primary strength of the
civilian review boards. If frustration over police practices is
indeed a major cause of urban disorders, 187 and if many of the
grievances which engender such frustrations can indeed be alle-
viated by an apology or police explanation, 188 then informal
conciliation of the individual case is a necessary function of
complaint channels. Because his ombudsman is in effect a court
of appeals bound by the factual findings of the police department,
it must be presumed that any informal accommodations Gellhorn
envisions must be effected by internal processes. Yet such an
arrangement presupposes a preexisting community trust of the
police, the lack of which supposedly made external review desir-
able in the first place. When a police department is unable to
project an impartial appearance, informal negotiation of a com-
promise between citizen and policeman must be attempted by an
external agency before a complaint is referred to the police
department for adversary adjudication. Whereas policy orienta-
tion undoubtedly offers creative possibilities for external review,
the ombudsman should not divorce himself from the individual
case to the degree that Professor Gellhorn recommends.
CONCLUSION AND RECOMMENDATIONS
To recapitulate for a moment, none of the remedies discussed
above can successfully control the everyday conduct of the police-
Securing Police Compliance With Constitutional Limitations 393
man on the beat the harassment and abuse which yields no
actual physical damage and results less from ill will than from
poor training. The exclusionary rule can remedy denials of con-
stitutional rights in cases which go to trial and result in convic-
tions. Civil damage actions, state or federal, can redress egregi-
ous misconduct resulting in actual damage. Injunctive relief can
halt and deter systematic misconduct directed at an identifiable
person or group of persons. However, solutions for the basic
problems of police-community relations cannot be imposed from
the outside: as even the most pessimistic commentators have
recognized, primary responsibility for everyday police discipline
must rest within the police department.
Nevertheless, since internal review has been uniformly slug-
gish, some kind of outside pressure must be brought to bear to
induce voluntary correction of illegal and otherwise abusive
police conduct. Mandatory injunctions issued by federal district
courts are too cumbersome for this purpose and are susceptible to
complete disruption of the internal review mechanism. The civil-
ian review boards are doomed to futility since they pit the ag-
grieved citizen against the police department in a formal adver-
sary proceeding; in short, someone always wins and someone is
always resentful. The ombudsman, on the other hand, shifts the
focus from dispute resolution to evaluation of the department's
grievance response mechanism. Yet, since the primary goals of
an effective complaint mechanism are to provide an objective
forum and encourage its use, individual grievances must remain
in the forefront, and their dispositions must be publicized.
What is needed is a hybrid of the ombudsman and the external
review agency, whose operation would have the following at-
tributes :
(1) The primary responsibility for police discipline must
remain with the police department itself.
(2) Nevertheless, there must be an easily accessible
agency external to the police department, which processes
citizen complaints in their inception rather than on appeal
from the police.
(3) In each case, this agency should:
(a) make an independent investigation of the complaints ;
(b) publicly exonerate the police if the complaint is
groundless ;
(c) in cases of misunderstanding or minor abuse, at-
tempt to resolve the dispute through an informal conciliation
meeting ;
(d) if efforts at conciliation should fail or if the police
behavior was unacceptable, make recommendations to the
Department regarding discipline or ways to relieve tension ;
394 Report of the Task Force on Law and Law Enforcement
(e) keep each citizen complainant aware of the disposi-
tion of his complaint.
(4) On all matters, the agency should keep the public
aware of its actions and the Department's response to its
recommendations and should publish periodic reports and
conclusions.
(5) So as not to single out the police for special oversight
the agency should be responsible for processing citizen
complaints not only against the police but also against other
basic governmental service agencies, such as those respon-
sible for welfare and employment. (For purposes of this
chapter, however, we shall focus only on the relation of such
an agency to the police department.)
While we affirm that our proposed agency will possess many
of the attributes of the Scandinavian "ombudsman," it neverthe-
less differs from it in many material respects. For purposes of
simplicity, however, we will call our agency "ombudsman." Its
functioning we will now describe in somewhat greater detail.
Persons with claims of police misconduct shall register them
directly with the ombudsman without first seeking internal police
review. He and his investigative staff shall first make findings
of fact. If, after such an investigation, the complaint is found
to be groundless, the ombudsman shall order it dismissed. If,
however, his findings indicate police impropriety, the ombuds-
man has two courses open to him informal conciliation and, if
that fails, recommendation to the police commissioner that dis-
ciplinary action be taken.
In the first instance, the ombudsman's most useful function is
to act as a conciliation agent between the police department and
the aggrieved citizen. Since many of the citizen's grievances stem
from seemingly trivial incidents, the ombudsman may be able to
satisfy the aggrieved citizen by bringing him together with the
offending policeman. Out of such meetings might come an apol-
ogy by the officer for his indiscretion and a better understanding
by the citizen of the tensions of day-to-day police work.
Such conciliation procedures and favorable results may seem
at first blush naive; however, experience with ombudsmen in
foreign countries indicates that conciliation is their strongest
weapon in their efforts to eliminate the rough edges of modern
bureaucracy. 189 The citizen will often be quite satisfied with an
apology or an explanation. Thus, the cumulation of such simple
meetings may do much to offset the hostility and violence which
can arise when citizens feel powerless against what they perceive
as thoughtless and arrogant uses of governmental power.
When a complaint is found to be meritorious and conciliation
attempts have failed or are clearly unsuitable, the ombudsman
Securing Police Compliance With Constitutional Limitations 395
shall send a recommendation to the police department that a
particular officer be disciplined. The ombudsman shall make such
recommendation only as the last resort in any given case. On
receipt of such recommendation, the responsibility for discipline
shall be with the department itself.
What if the police department decides not to act on the om-
budsman's recommendation? This knotty problem really presents
two separate issues non-action in a given case and non-action
in most cases (indicating a course of conduct by the department
not to heed the recommendation of the ombudsman). We feel
that the systematic refusal of the department to cooperate with
the ombudsman can be overcome by bringing it to public light
in the ombudsman's periodic reports. The force of public opinion
should push a clearly defiant police department into action. Al-
though many citizens fear undue hampering of police efforts to
curb crime, few will sanction police lawlessness. Moreover, re-
fusal to heed the recommendations of the independent ombuds-
man should engender indignant response even from members of
the majority community who have little contact with the po-
lice. 190
Despite our concern for refusal to act on the ombudsman's
recommendation as a general course of conduct, we emphasize
that the department must retain discretion in each case to decide
whether there should be disciplinary action and what the punish-
ment should be. Maintenance of police morale and efficient law
enforcement require that the department make the final decision.
Thus, if an individual instances the police department disagrees
with the ombudsman's recommendation, the department's good
faith should be accepted.
In sum, then, if the police department systematically refuses
to respond to the ombudsman's recommendation with reasonable
exercises of internal discipline, the ombudsman should bring this
recalcitrance to public attention in his periodic reports and rely
on public pressure to activate internal police machinery. On the
other hand, should the police generally follow his suggestions
but occasionally refuse to act, the ombudsman should seek an
explanation and accept such exercises of discretion as good faith
determinations that in their opinion no action was justified.
Whatever the outcome of departmental action on the ombuds-
man's recommendations, his final duty in the processing of citi-
zen complaints will be to publicize the action taken. First, he
should inform the complainant directly of the action taken on
his complaint. In addition, he should record both his and the
Department's dispositions for general information to the public.
We suggest that in informing the general public he should not
refer by name to the officer disciplined but merely should report
that as a result of his recommendation the department fined,
396 Report of the Task Force on Law and Law Enforcement
suspended, etc., an officer on a given date. The purpose of in-
forming the complainant of the outcome of the case is to give
him confidence that his complaint was duly considered and acted
upon. The more general record serves to keep the public aware
that legitimate grievances against the police do have an effective,
nonviolent outlet.
In addition to processing citizen grievances, the ombudsman
should publish periodic reports. We suggest that these public
reports be submitted every six months. At the very least, such
reports should include statistical accounts of the number and dis-
position of private complaints coming to his attention. Moreover,
because naked statistics are often subject to inconsistent in-
terpretations, the ombudsman should make an assessment of the
overall performance of his office and responsiveness of the police
to his suggestions. We must reiterate that this assessment is the
ombudsman's most potent weapon for marshalling public sup-
port and for prodding a recalcitrant police force. Together with
an assessment of the ombudsman's work with the police in deal-
ing with private complaints, the report should contain recom-
mendations of a general nature drawn from an overview of the
complaints. For example, the ombudsman might recommend that
a slight change in present police practice could eliminate a sub-
stantial irritant in police community relations.
His recommendations should extend not only to police practice
guidelines but also to legislative action he deems necessary to
defuse the ghettos or improve law enforcement. For instance, a
very common complaint in ghetto communities is that the police
do not readily respond to calls for help. If the reason is that the
police force is substantially undermanned, the ombudsman could
lend the authority of his voice to the call for the legislative body
to allocate more money for more police services. By making sub-
stantive recommendations to the legislature and suggesting
guidelines for police practice to minimize citizen complaints the
ombudsman's reports could be a truly effective force for vigorous
yet benign law enforcement.
Finally, having described in a general way the duties of the
ombudsman, we advert briefly to questions of agency structure
and funding. In this regard we merely sketch our suggestions,
as follows :
(1) at least some of the initial funding must come from
federal government because of the already great demands
on municipal and state funds ;
(2) the agency must be locally controlled;
(3) the agency must be supplied with sufficient funds to
attract a first-rate investigative staff;
(4) the agency must be organized to process complaints
quickly and efficiently ;
Securing Police Compliance With Constitutional Limitations 397
(5) since conciliation will be its primary function, the
agency must be highly visible; accordingly, we recommend
that it have neighborhood offices and a publicity budget ;
(6) the ombudsman must be a man who can secure the
cooperation of all parties affected by his office and can mus-
ter public support for his recommendation; such men will
be available only if the community is committed to the suc-
cess of his project;
(7) the ombudsman appointment procedure should leave
him representing no particular interest group and above
political pressure;
(8) the ombudsman should be appointed to a single four
to six year* term and should be empowered to select his own
staff. 191
REFERENCES
1. 232 U.S. 383 (1914).
2. Id. at 392 (italics supplied).
3. Id. at 393 (italics supplied).
4. Olmstead v. United States, 277 U.S. 438, 470 (1928). (Dissenting
opinion.)
5. Id. at 484. (Dissenting opinion.)
6. 44 Cal. 2d 434, 445, 282 P. 2d 905, 912 (1955).
7. 367 U.S. 643 (1961).
8. Supra note 6, at 913.
9. Id. at 911.
10. Barrett, "Personal Rights, Property Rights and the Fourth Amend-
ment," 1960 Sup. Ct. Rev. 46, 54-55. An example of police misconduct
not reached by the exclusionary rule is the Plainfield search described
in Bean, "Plainfield : A Study in Law and Violence," 6 Am. Crim. L.Q.
154 (1968).
11. 394 F. 2d 443 (2d Cir. 1968). (Dissenting opinion.)
12. Id. at 452.
13. Id.
14. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1919).
15. Bynum v. United States, 262 F. 2d 465 (D.C. Cir. 1958).
16. Wong Sun v. United States, 371 U.S. 471 (1963).
17. Id. The test was formulated by Professor Maguire; see Maquire,
Evidence of Guilt 221 (1959).
18. 88 S. Ct. 2008 (1968). (Dissenting opinion.)
19. 348 F. 2d 823, 835 (5th Cir., 1965). (Concurring opinion.) Judge
Friendly (2d Cir.) sat by designation in the Fifth Circuit.
20. 386 U.S. 18 (1966).
21. Griffin v. California, 380 U.S. 609 (1965).
22. 386 U.S. at 24.
23. Id. at 26.
24. 89 S. Ct. 1726 (1969).
25. Dakin, "Municipal Immunity in Police Torts," 16 Clev. Mar. L. Rev.
448 (1967). For defenses available to the policeman upon arrest for
self-defense, see notes 51-54 infra.
26. See W. Prosser, The Law of Torts, 54-55 (3d ed., 1964); cf.
398 Report of the Task Force on Law and Law Enforcement
Mathes S. Jones, "Toward a 'Scope of Official Duty' Immunity for
Police Officers in Damage Actions," 53 Geo. LJ. 889, 898 (1965)
(describing the possibility of a recovery against the arresting officer
for false imprisonment following a valid arrest if he failed his
statutory duty to arraign the suspect before the magistrate without
unnecessary delay). See Dagna v. White, 45 Cal. 2d 469, 289 P. 2d
428 (1955).
27. Id. at 54.
28. Guzy v. Guzy, 16 Misc. 2d 975, 184 N.Y.S. 2d 161 (Ct. A. 1959) ;
Schildhaus v. City, 163 N.Y.S. 2d 201 (1957). For a comprehensive
listing of authorities, see Miller v. Stinnett, 257 F. 2d 910, 913 (10th
Cir. 1958). See also, Prosser, supra note 26 at 130; "False Imprison-
ment," 22 Am. Jur. 67 (1938).
29. Restatement of Torts (Second), 121 (1965) ; Henry v. United States,
361 U.S. 98 (1959).
30. Cole v. Johnson, 197 Cal. App. 2d 788, 793, 17 Cal. Rptr. 664, 667
(1961).
31. The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to searched, and the persons or things to be seized. U.S. Const.,
amend. 4.
32. In Pierson v. Ray, 386 U.S. 547, 555 (1967), the Supreme Court,
recognizing the possibility of authority to the contrary, expressed the
opinion that a policeman would be immune from liability for acting
under a statute that he reasonably believed to be valid if it was later
held unconstitutional. For a collection of authorities to contrary,
where good faith reliance upon a subsequently invalidated statute is
not a defense, see Miller v. Stinnett, supra note 28, (finding a lack
of good faith in the application of the statute involved).
33. Prosser, supra note 26, at 61.
34. Gill v. Montgomery Ward & Co., 284 App. Div. 36, 129 N.Y.S. 2d
288 (1954). In those cases dealing with an action for false imprison-
ment because of subsequent invalidation of the statutory basis for the
arrest, where liability has been found, good faith on the part of the
police officer is admissible in mitigation of damages. S.H. Kress & Co.
v. Powell, 132 Fla. 471, 180 So. 757 (1938); Gogue v. MacDonald,
35 Cal. 2d 482, 218 P. 2d 542 (1950) ; Singleton v. Perry, 45 Cal.
2d 489, 289 P. 2d 794 (1955).
35. Prosser, supra note 26, at 55-56, 853; Nesmith v. Alford, 318 F. 2d
110, rehearing denied, 319 F. 2d 859 (5th Cir. 1963).
36. See notes 43-47 infra.
37. Foote, "Tort Remedies for Police Violations of Individual Rights," 39
Minn. L. Rev. 493, 504 (1955).
38. Pa. Stat. Ann. tit. 19, 682 (1964) (disqualifying as a witness a per-
son who has been convicted of perjury or subordination of perjury).
See United States v. Segelman, 83 F. Supp. 890, 892, (W.D. Pa. 1949)
(holding Pennsylvania rule of disqualification does not apply in crimi-
nal cases in federal courts).
39. Hill v. Day, 168 Kan. 604, 215 P. 2d 219 (1950); Smoker v. Ohl, 335
Pa. 270, 6 A. 2d 810 (1939); Foote, supra note at 506.
40. In about one-third of the jurisdiction the doctrine of civil death sus-
pends the right to sue during the duration of imprisonment. "The
Legal Status of Convicts During and After Incarceration," 37 Va. L.
Rev. 105, 106 (1951). Even absent this obstacle to the prosecution of a
suit, the plaintiff may face the problem of an extremely limited use of
Securing Police Compliance With Constitutional Limitations 399
writ of habeas corpus ad testificandum, and thus may be unable to
get from prison to court in order to testify. Foote, id. at 508.
41. Foote, id. at 504.
42. It would appear that where defendants in false arrest suits could
prove that, although they lacked probable cause in the legal sense for
the arrest, there were factors which tended to give the appearance of
probable cause for arrest, such factors would be considered in mitiga-
tion of damages. See Goodwin v. Allen, 89 Ga. App. 187, 78 S.E. 2d
804 (1953) ; Foote, id. at 505.
43. Prosser, supra note 26, at 62, 852.
44. Jordan v. State, 56 Misc. 2d 1032, 290 N.Y.S. 2d 621 (Ct. Cl. 1968) ;
Mathews v. Murray, 101 Ga. App. 216, 113 S.E. 2d 232 (1960).
45. Prosser, supra note 26, at 853-68.
46. Laughlin v. Garnett, 138 F. 2d 931 (B.C. App. 1943) ; Bromund v.
Holt, 24 Wis. 2d 336, 129 N.W. 2d 149 (1964)-; -Coverst one v. Davies,
38 Cal. 2d 315, 239 P. 2d 876 (1952). For a general treatment of the
scope of police immunity, see Annot., 28 A.L.R. 2d 646-652 (1953);
Prosser, supra note 26, at 856.
47. Bromund v. Holt, 24 Wis. 2d 336, 129 N.W. 2d 149 (1964) (citing
Prosser, supra note 26, at 856).
48. Williams v. Franzoni, 217 F. 2d 533 (2d Cir. 1954) ; Guzy v. Guzy t
16 Misc. 2d 975, 184 N.Y.S. 2d 161 (Ct. Cl. 1959) ; Houghtaling v.
State, 11 Misc. 2d 1049, 175 N.Y.S. 2d 659 (Ct. App. 1958) ; McFarland
v. Skirkey, 151 N.E. 2d 797 (Ohio App. 1958).
49. Foote, supra note 37, at 494. For a thorough discussion of the obstacles
binding a plaintiff who is prosecuting a police officer for trespass
arising from an illegal search or seizure, see Justice Murphy's dissent
in Wolf v. Colorado, 338 U.S. 25, 41-44 (1949).
50. Foote, id. at 498.
51. Wolf v. Colorado, 338 U.S. 25, 43-44 (1949) (Murphy, J. dissenting).
52. Id. at 43.
53. Id. at 43. If the burden of proving malice is carried, the plaintiff
usually must also prove physical damages in order to recover punitive
damages, and it appears that in some states, these damages are
limited to the actual expenses of the litigation. "Developments in the
Law Damages," 61 Harv. L. Rev. 113, 119-20 (1947). Other states
demand some arbitrary ratio between actual and punitive damages in
a verdict. Morris, "Punitive Damages in Tort Cases," 44 Harv. L. Rev.
1173, 1180-81 (1931).
54. Restatement (Second) of Torts 132 (1965).
55. Id. 141-43.
56. Mathes S. Jones, supra note 26, at 898. See cases collated in R. Smith,
"The Use of Deadly Force by a Peace Officer in the Apprehension of
a Person in Flight," 21 U. Pitt. L. Rev. 132 (1959) ; Note, "The Civil
Liability of Police for Wounding or Killing," 28 U. Cinn. L. Rev.
488 (1959): Annot. 60 A.L.R. 2d 873 (1958). For cases involving
innocent bystanders, see Cerri v. United States, 80 F. Supp. 831 (N.D.
Ca. 1948); Davis v. Hellwig, 21 N.J. 412, 122 A. 2d 497 (1956);
Young v. Kelly, 60 Ohio App. 382, 21 N.E. 2d 602 (1938).
57. This appears to be true because of the difficulties faced by the plaintiff
if he has to prove that the quantum of violence employed by the
policeman was unreasonable. Where the plaintiff is able to prove that
the arrest was illegal, the force employed by the officer is necessarily
unreasonable and he is therefore liable; but where the legality of the
arrest is not in issue, all that the defendant must demonstrate is that
the force was justifiable to effect the arrest or to defend himself
400 Report of the Task Force on Law and Law Enforcement
thereby shifting to the plaintiff the difficult burden of proving
unreasonable force. See Ware v. Garvey, 139 F. Supp. 71, 79 (D. Mass.
1956).
58. II National Commission on Law Observance and Enforcement, No. 8
Report on Criminal Procedure 19 (1931).
59. At the very least, the civil plaintiff must bear attorney costs, and
thus many actions against the police are undoubtedly precluded by
the aggrieved party's lack of funds. United States Commission on
Civil Rights, 1961 Commission on Civil Rights Report: Justice, V, 81
(1961).
60. Ker v. Illinois, 119 U.S. 436, 444 (1886).
61. Foote, supra note 37, at 500.
62. 1961 Commission on Civil Rights Report; Justice, supra note 59, at 81;
President's Commission on Law Enforcement and Administration of
Justice (hereinafter cited as Crime Commission), Task Force Report:
The Police, at 199; Dakin, supra note 25, at 448-449.
63. E.g., Foote, supra note 37; Fuller and Casner, "Municipal Tort Lia-
bility in Operation," 54 Harv. L. Rev. 437 (1941); Jaffe, "Suits
Against Governments and Officers Damage Actions," 77 Harv. L. Rev.
209 (1963). Lawyer, "Birth and Death of Government Immunity,"
15 Clev. Mar. L. Rev. 529 (1966); Mathes S. Jones, supra note 26;
Tooke, "The Extension of Municipal Liability in Tort," 19 U. Va. L.
Rev. 97 (1932).
64. Foote, supra note 37, at 515. See "Arrest of Wrong Person," 18 So.
Calif. L. Rev. 162 (1944).
65. A growing disenchantment for the doctrine has recently led some
states and cities to abolish it by statute. E.g., Cal. Gov't Code 815.2,
825, 825.2 (1966); Minn. Stat. Ann. 466.02 (1963); N.Y. Ct. Cl.
Act 8 (1963); Wash. Rev. Code of Wash. Ann. 4.920.090 (1962).
Others have abolished the doctrine by judicial fiat. Hargrove v. Cocoa
Beach, 96 So. 2d 130 (Fla. 1957) ; Steele v. Anchorage, 385 P. 2d
582 (Alas. 1963) ; Stone v. Arizona Highways Comm., 93 Ariz. 384, 381
P. 2d 107 (1963) ; Molitor v. Kaneland Community Unit Dist. No. 302,
18 111. 2d 11, 163 N.E. 2d 89 (1959) ; Williams v. Detroit, 364 Mich.
231, 111 N.W. 2d 1 (1961); McAndrew v. Mularchuk, 33 N.J. 172,
162 A. 2d 820 (1960); Kelso v. Tacoma, 63 Wash. 2d 912, 390 P. 2d
2 (1964) ; Holtyz v. Milwaukee, 17 Wis. 2d 26, 115 N.W. 2d 618 (1962).
A District of Columbia judge has recently ruled that the government
may be sued when its policemen are accused of brutality. Washington
Post, Jan. 7, 1969, at Dl.
Five states have modified sovereign immunity where the municipality
has insurance. Idaho Code Ann. 41-3505 (1961); Mo. Ann. Stat.
71.185 (Supp. 1969); N.H. Rev. Stat. Ann. 412.3 (1968); N.D.
Cent. Code 40-43-07 (1968); Ut. Stat. tit. 29, 1403 (Supp. 1968).
Illinois and Connecticut indemnify governmental employees for judg-
ments incurred for torts committed in the course of carrying out their
duties. Comm. Gen. Stat. 7-465 (Supp. 1969); 111. Rev. Stat., Ch.
24, 1-4-5 (1962), 1-4-6 (Supp. 1969).
66. See note 63 supra.
67. 17 Stat. 13 1 (1871).
68. Pier son v. Ray, 386 U.S. 547 (1967); Monroe v. Pape, 365 U.S. 167
(1961).
69. The past 8 years have witnessed a marked increase in cases under
42 U.S.C. 1983. The annual numbers of private civil actions filed in
district courts under the Civil Rights Act are in the Annual Report [sj
of the Administrative Office of the United States (Table C2)
Securing Police Compliance With Constitutional Limitations 401
Year Number of cases
1958 _ 220
1959 . 247
1960 . 280
1961 270
1962 . 357
1963 . 424
1964 . 645
1965 . 994
1966 . 1,154
Not all of these cases alleged police misconduct; many were directed at
other state and local officials by citizens claiming to have been
unreasonably deprived of economic rights licenses, contracts and
the like.
70. 313 U.S. 299 (1941).
71. 325 U.S. 91 (1945).
72. 313 U.S. 299, 326 (1941).
73. 325 U.S. 91, 111 (1945).
74. 365 U.S. 167 (1961).
75. Id. at 187. Further, the Court states: "Section 1979 [now 1983] should
be read against the background of tort liability that makes a man
responsible for the natural consequences of his actions. Id.
76. 386 U.S. 547 (1967).
77. Hughes v. Smith, 264 F. Supp. 767 (D.N.J. 1967). Moreover, prior to
Pierson, many courts applied such a standard : "One essential require-
ment of an action under this section is that the plaintiff show facts
which indicate that the defendant, at the time he acted, knew or as a
reasonable man should have known that his acts were ones which
would deprive the plaintiff of his constitutional rights or might lead
to that result." Bowens v. Knazze, 237 F. Supp. 826 (N.D. 111. 1965).
See Cohen v. N orris, 300 F. 2d 24 (9th Cir. 1962) (unforeseeability
due to defects in a warrant may be a good defense) ; Bargainer v.
Michal, 233 F. Supp. 270 (N.D. Ohio, 1964) (police must be protected
from "honest misunderstandings of statutory authority and mere
errors of judgment.") ; Beauregard v. Winegard, 363 F. 2d 901 (9th
Cir. 1966) (where probable cause for an arrest exists, civil rights
are not violated even though innocence may subsequently be estab-
lished even actual malice in undertaking an investigation will not
permit recovery if that investigation produced probable cause).
78. Bargainer v. Michal, 233 F. Supp. 270 (N.D. Ohio 1964), where the
court in diction conceded the difficulty of applying 1983 to an assault
by a policeman unaccompanied by an arrest. See also, Selico v. Jackson,
201 F. Supp. 475, 478 (S.D. Cal. 1962); "[Where] . . . facts are
alleged which indicate not only an illegal and unreasonable arrest and
an illegal detention, but also an unprovoked physical violence exerted
upon the persons of the plaintiffs ... It certainly cannot seriously be
urged that defendant acted as a result of error or honest misunder-
standing." See Basista v. Weir, 340 F. 2d 74 (3d Cir. 1965) ; Hardwick
v. Hurley, 289 F. 2d 529 (7th Cir. 1961); Hughes v. Smith, 264 F.
Supp. 767 (D.N.J. 1967); Dodd v. Spokane County, 393 F. 2d 330
(9th Cir. 1968) (assault by prison official actionable) ; Jackson v.
Martin, 261 F. Supp. 902 (N.D. Miss. 1966) (allegation provocation
shot plaintiff states a good cause of action under 1983).
79. Lank ford v. Gelston, 364 F. 2d 197 (4th Cir. 1966). Here where police
officers had on 300 occasions over 19 days, searched third persons'
homes, without search warrants and on uninvestigated and anonymous
tips, for suspects, the court, in granting petitioners injunctive relief
402 Report of the Task Force on Law and Law Enforcement
from this practice, said: "There can be little doubt that actions for
money damages would not suffice to repair the injury suffered by the
victims of police searches . . . [T]he wrongs inflicted are not readily
measurable in terms of dollars and cents. Indeed the Supreme Court
itself has already declared that the prospect of pecuniary redress for
the harm suffered is 'worthless and futile.' Moreover, the lesson of
experience is that the remote possibility of money damages serves as
no deterrent to future police invasions." Id. at 202.
80. Report of the National Advisory Commission on Civil Disorders
(Washington, B.C.: Government Printing Office, 1968), at 159. (Here-
inafter cited as Kerner Report.)
"Harassment" or discourtesy may not be the result of malicious or
discriminatory intent of police officers. Many officers simply fail to
understand the effects of their actions because of their limited knowl-
edge of the Negro community. . . .
In assessing the impact of police misconduct, we emphasize that the
improper acts of relatively few officers may create severe tensions
between the department and the entire Negro community.
81. See Shapo, "Constitutional Tort: Monroe v. Pape and the Frontiers
Beyond," 60 N.W.U.L. Rev. 277, 327-29 (1965).
82. A sampling of the cases in which recoveries were made for police
violence reveals truly outrageous conduct.
See Me Arthur v. Pennington, 253 F. Supp. 420 (E.D. Tenn. 1963)
($5100 total damages proper for wrongful arrest by a city policeman
$1800 out of pocket damage to plaintiff, $1600 lost wages and the
rest for humiliation, mental suffering and injury to reputation) ;
Brooks v. Moss, 242 F. Supp. 531 (W.D.S.C. 1965) ($3,500 actual
damages and $500 punitive damages proper where plaintiff received a
serious blow to the head and such an attack and the subsequent false
criminal prosecution were clearly in violation of his constitutional
rights) ; Jackson v. Duke, 259 F. 2d 3 (5th Cir. 1958) (Award of
$5000 to person who was pistol whipped, knocked down and stomped,
kicked in the face, throat and stomach, falsely arrested, falsely accused
of drunkenness and unlawfully jailed was not excessive).
83. 367 U.S. 643 (1961); See also Wolf v. Colorado, 338 U.S. 25, 41-44
(1949) (Murphy, J., dissenting).
84. Lankford v. Gelston, supra note 79, at 202; see Pierce v. Society of
Sisters, 268 U.S. 510, 536 (1925).
85. E.g., City of Jacksonville v. Wilson, 157 Fla. 838, 27 So. 2d 108, 112,
(1946) ; Delaney v. Flood, 183 N.Y. 323, 76 N.E. 209 (1906), See also,
Annot., 83 A.L.R. 2d 1007, 1016-17 (1962).
86. No injunction will issue if the plaintiff fails to move that the police
acted without reasonable grounds or probable cause. See Seaboard
N.Y. Corp. v. Wallander, 192 Misc. 227, 80 N.Y.S. 2d 715 (Sup. Ct.
1948) ; Monfrino v. Gutelius, 66 Ohio App. 293, 33 N.E. 2d 1003
(1939); Kalwin Business Men's Ass'n. v. McLaughlin, 216 App. Div.
6, 214 N.Y. Supp. 507 (1926) ; Joyner v. Hammond, 199 Iowa 919,
200 N.W. 571 (1924). The police will also be enjoined if they acted
maliciously or in bad faith. See Hague v. CIO, 307 U.S. 496 aff'g
with modifications 191 F. 2d 774 (3d Cir. 1939) ; Comment, "Federal
Injunctive Relief From Illegal Search", 1967 Wash. U.L.Q. 104,
109-110.
87. See, e.g., Upton Enterprises v. Strand, 195 Cal. App. 2d 45, 15 Cal.
Rptr. 486 (1961).
88. Every person who, under color or any statute, ordinance regulation,
custom or usage . . . subject, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities . . . shall be
Securing Police Compliance With Constitutional Limitations 403
liable to the party injured in ... suit in equity, or other proper
proceeding for redress. 42 U.S.C. Sec. 1983 (1964).
89. See Note, "The Federal Injunction as a Remedy for Unconstitutional
Police Conduct", 78 Yale LJ. 143, 146 (1968).
90. 307 U.S. 496, Aff'g with modifications 101 F. 2d 774 (3d Cir. 1939),
aff'g 25 F. Supp. 127 (D.N.J. 1938).
91. Wolin v. Port of N.Y. Auth., 392 F. 2d 83 (2d Cir. 1968), petition for
cert, filed, 36 U.S.L.W. 3474 (U.S. May 31, 1968) (enjoining the port
authority from interfering with plaintiffs' distribution of anti-war
leaflets at bus terminal) ; Williams v. Wallace, 240 F. Supp. 100 (M.D.
Ala. 1965) (Enjoining the Governor and other officials of Alabama
from interfering with proposed march by Negroes to petition the
government for redress of their grievances in being deprived of the
right to vote) ; Local 309, United Furniture Workers v. Gates, 75 F.
Supp. 620 (N.D. Ind. 1948) (enjoining state police from attending
union meeting held for purposes of discussion strike then in progress).
92. Houser v. Hill, 278 F. Supp. 920 (M.D. Ala. 1968) (granting injunc-
tion against police found to have, inter alia, interefered with peaceful
and lawful assemblies and failed to provide proper police protection
against hostile persons intimidating these peaceful assemblies) ;
Cottonreader v. Johnson, 252 F. Supp. 492 (M.D. Ala. 1966) (granting
injunction to secure the safety and security of Negroes demonstrating
against the denial of constitutional rights).
93. 74 F. Supp. 336 (N.D. Ga. 1947).
94. 364 F. 2d 197 (4th Cir. 1966).
95. After the fatal shooting of a police officer, the Baltimore police,
searching for the suspects, made over 300 searches of mostly Negro
homes without warrants, proceeding on the basis of anonymous phone
tips. These searches were conducted very often in an offensive manner,
without the owners' consent, and without explanation by the police.
The plaintiffs, Negroes, brought an action in the district court seeking
a temporary restraining order and a preliminary injunction against
the continuation of these tactics. No restraining order was issued, but
three days later the police commissioner issued a General Order
declaring that an officer must have "probable cause" to believe the
suspects were inside before searching a dwelling and the searches
without warrants ceased. Thereafter, the district court refused to
issue a preliminary injunction because it appeared that the relief was
unnecessary. The illegal searches had almost completely stopped by the
time the General Order was issued, and the district court was of the
opinion that such searches would be prevented in the future. The
Circuit Court, however, emphasized the atrocity of the police tactics,
the invasion of the rights of innocent citizens and the inadequacy
of any possible redress at law. They found that the General Order was
inadequate as a guarantee against possible recurrences of widespread
illegal searches, and therefore ordered the district court to issue the
injunction.
96. Lankford v. Gelston, supra note 79, at 201-02; Refoule v. Ellis, 74
F. Supp at 343 (1947).
97. Id.
98. Note, supra note 89, at 147.
99. A scheme which seems to work for one city of a particular region,
size, and political atmosphere may not be appropriate for an entirely
different urban climate. Such hypothetically determined judgments are
best left to the legislature. Application of a successful internal review
mechanism of any given police department to other departments may
also be misguided, because the apparent adequacy of its complaint and
404 Report of the Task Force on Law and Law Enforcement
disciplinary framework may be a product less of ideal procedural
formalities than the quality of the people who administer them.
100. Note, supra note 89, at 149.
101. Id. at 150.
102. Id.
103. As of 1960, less than half of the States had any criminal provisions
relating directly to unreasonable searches and seizures. The punitive
sanctions of the 23 states attempting to control such invasions of the
right of privacy are collected in Mapp v. Ohio, 367 U.S. 643, 652 note 7
(1960).
104. Commonwealth v. Cheney, 141 Mass. 102, 6 N.E. 724 (1886) (if an
officer makes an arrest and it turns out that no crime has been com-
mitted, his good faith in the performance of his official duty is a
defense to a criminal prosecution, although it would not be a civil
action). See also Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333
(1933) ; Henderson v. State, 95 Ga. App. 830, 99 S.E. 2d 270 (1957).
105. 52 Am. JUT. Trespass Sec. 84 (1944).
196. Brown v. Martinez, 68 N.M. 271, 361 P. 2d 152 (1961) ; Owens v. Town
of Atkins, 163 Ark. 82, 259 S.W. 396 (1924).
107. People v. Winig, 7 Misc. 2d 803, 163 N.Y.S. 2d 995 (1957) ; People v.
Barton, 18 AD 2d 612, 234 N.Y.S. 2d 263 (1962); Barber v. State,
199 Ind. 146, 155 N.E. 819 (1927).
108. State v. Faggart, 170 N.C. 737, 87 S.E. 31 (1915).
109. State v. Turner, 60 Conn 222, 22 A. 542 (1891). Whittlesey v. U.S.
221 A. 2d (1966).
110. Foote, supra note 37, at 494.
111. Whoever, under color of any law, statute, ordinance, regulation or
custom, willfully subjects any inhabitant of any State, Territory, or
District to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States,
or to different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or race, than are
prescribed for the punishment of citizens, shall be fined not more than
$1,000 or imprisoned not more than one year, or both. June 25, 1948,
ch. 645, 62 Stat. 696. 18 U.S.C. 242 (1964).
112. 325 U.S. 91 (1945).
113. "But in view of our construction of the world "willfully", the jury
should have been instructed that it was not sufficient that petitioners had
a generally bad purpose. To convict it was necessary for them to find
that petitioners had the purpose to deprive the petitioner of a con-
stitutional right ..." at 107.
Further: "When they act willfully in the sense in which we use the
word, they act in open defiance or unreckless disregard of a con-
stitutional requirement which has been made specific and definite."
114. See Foote, supra note 37; but see Caldwell and Brodie, "Enforcement
of the Criminal Civil Rights Statute, 18 U.S.C. Section 242. In Prison
Brutality Cases," 52 Geo. L. J. 706 (1964) which suggests that since
the creation of the Civil Rights Division of the Justice Department
there has been more action under this statute. The cases he cites have
little to do with police conduct outside the prison setting.
115. In the area of police conduct exclusive of the prison setting there
there have been only nineteen cases since the Screws decision of which
thirteen ended in conviction. See especially, Miller v. United States,
404 F. 2d 611 (5th Cir. 1968) where the court upheld the conviction
of two Louisiana police officers for wilfull brutality and infliction of
summary punishment by making their police dog bite the suspect in
order to coerce a confession from him.
Securing Police Compliance With Constitutional Limitations 405
116. Williams v. United States, 341 U.S. 97 (1951) (private detective
holding special officers cards of city police brutally beat confessions
from suspected lumber yard thieves) ; Lynch v. United States, 189 F.
2d 476 (5th Cir.), cert. den. 342 U.S. 831 (1950) (Officer of laws who,
having prisoner in his custody, assaulted and beat him was found
guilty under this section). See also, Apodaca v. United States, 188
F. 2d 932 (10th Cir. 1951); United States v. Jackson, 235 F. 2d 925
(8th Cir. 1951) ; Koehler v. United States, 189 F. 2d 711 (5th Cir.
1951), cert. den. 342 U.S. 852, rehearing den., 342 U.S. 889.
117. See our argument above that any looser standard would gravely and
unduly hamper law enforcement efforts.
118. 68 Stat. 803, 18 U.S.C. 2236 (1948) (unlawful search and seizure) ;
62 Stat. 803, 18 U.S.C. 2236 (1948) (malicious procurement of a
warrant); 62 Stat., 803, 18 U.S.C. 2234 (1948) (exceeding authority
under a warrant).
119. The first formulation of this proposal is in 8 Wigmore, Evidence, Sec.
2184 (3d ed. 1940) :
The natural way to do justice here would be to enforce the
healthy principle of the Fourth Amendment directly, i.e., by
sending for the high-handed, over-zealous marshal who had
searched without a warrant, imposing a thirty-day imprisonment
for his contempt of the Constitution, and then proceeding to
affirm the sentence of the convicted criminal.
For a recent development of this theme, see Blumrosen, "Contempt
of Court and Unlawful Police Action," 11 Rutgers L. Rev. 526 (1957).
120. 8 Wigmore, Evidence, Sec. 2184-85 (3d ed. 1940) ; and id. at 526-29.
121. Bloom v. Illinois, 391 U.S. 194 (1968).
122. Field Surveys V, A National Survey of Police and Community
Relation. Prepared by the National Center on Police and Community
Relations, Michigan State University, for the President's Commission
on Law Enforcement and Administration of Justice 193-205 (1967).
123. Crime Commission, supra note 62, Task Force Report: The Police,
at 195. Citizen apathy is apt not to tolerate the effort and delays
incident to a complicated procedure for filing complaints. See
Niederhoffer, "Restraint for the Police: A Recurrent Problem," 1
U. Conn. L. Rev., 288 296 (1968).
124. Note, "The Administration of Complaints by Civilians Against the
Police," 77 Harv. L. Rev. 501-502 (1964).
125. See Niederhoffer, supra note 123, at 296.
126. In Washington, B.C., in 1962 the Police Department charged 40 per-
cent of all persons who complained of police abuse with filing a false
report. By contrast, only 0.003 percent of those who reported other
crimes were similarly charged. Michigan State Survey, supra note
122, at 204.
127. Crime Commission, supra note 62, Task Force Report: The Police,
at 195.
128. See J. Lohman and G. Misner, The Police and the Community: The
Dynamics of Their Relationship in a Changing Society, II, at 174
(1966). Governor's Select Commission on Civil Disorder, State of New
Jersey, Report for Action 35 (1968).
129. Crime Commission, supra note 62, Task Force Report: The Police,
at 195.
130. Id.
131. Michigan State Survey, supra note 122, at 201-202. The Harvard
Study found fewer than 5 percent of responding departments relied
exclusively on a special independent unit to investigate complaints.
But some, such as the New York City Department, provided for review
of line investigations by a specially assigned supervisor. In Los
406 Report of the Task Force on Law and Law Enforcement
Angeles, an Internal Affairs Division had the discretion to supplement
a local investigation with an independent inquiry of its own. Note,
"The Administration of Complaints by Civilians Against the Police,"
supra note 124 at 503-05.
132. The line investigator, whose views are likely to parallel those of his
accused colleague, may not find the alleged violation particularly
offensive. J. Lohman & G. Misner, supra note 128, II, at 203. His
disposition to vigorously investigate may also be dampened by the
realization that he may be the subject of a similar investigation in
the future by the defending officer. Michigan State Survey, supra note
122, at 219. Finally, a sense of organizational loyalty may persuade
a local investigator to whitewash the indiscretions of a compatriot in
the interests of preserving the department's reputation. Niederhoffer,
supra note 123, at 296.
133. Crime Commission, supra note 62, Task Force Report: The Police,
at 196.
134. Note, "The Administration of Complaints by Civilians Against the
Police," supra note 124, at 506.
135. Id. at 507. About 40 percent of trial boards have no jurisdiction over
a complaint while a civil or criminal suit is pending against either
the accused officer or the complainant. That a hearing should be
barred by an civil action or an unrelated criminal prosecution is in-
explicable. Furthermore, 25 percent of the review boards are pro-
hibited from hearing a complaint after a related judicial determination
had exonerated the policeman or convicted the complainant. Yet the
absence of legal liability seems irrelevant to the need to discipline a
miscreant officer. Id. at 506.
136. Michigan State Survey, supra note 122, at 223. Even when the hear-
ings are open to the public, the complainant is rarely allowed to
examine the investigation report for purposes of rebuttal. Id. at 203.
It has been noted that in police hearings the citizen often appears to
be the one on trial, as he is barraged with irrelevant and threatening
questioning, J. Lohman and G. Misner, supra note 128, II, at 203.
137. Michigan State Survey, supra note 122, at 203. The complainant is
typically merely assured that his grievance has been adequately
handled, which leaves him feeling ignored as he suspected he would
be in the first place. J. Lohman and G. Misner, supra note 128, I,
at 172, 174.
138. It would seem that the many covert incidents of internal review hurt
the police more than help them. Surely all the safeguards against
public exposure must lead many people to think the police's wash is
dirtier than it really is.
139. Michigan State Survey, supra note 122, at 186. Prior to the establish-
ment of a citizen Police Advisory Board, no Philadelphia officer had
even been disciplined on the basis of a citizen complaint of police
abuse. Coxe, "The Philadelphia Police Advisory Board," 2 L. in
Trans. Q. 179, 185 (1965). Of 30 brutality complaints to the Inspec-
tion Officer of the Newark Police Department in 1966-67, none
resulted in a policeman being charged. New Jersey Report, supra
note 128, at 35.
140. A recent study indicated that in 32 cases of proven brutality in
Detroit, the punishment exceeded a written reprimand only twice.
See Michigan State Survey, supra note 122, at 186. Much criticism was
directed at the leniency of a recent ruling by a police chief that an
officer accused of brutality be fined $50 and ordered to attend a human
relations course at the police academy. See Washington Post, Sept.
19, 1968, at Bl, Sept. 23, 1968, at A20.
Securing Police Compliance With Constitutional Limitations 407
141. In Philadelphia, "rude or offensive language or conduct offensive to
the public" invokes the same five-day suspension as "unexcused tardi-
ness." In fact, the entire Disciplinary Code seems geared to punishing
conduct the Department finds offensive to its own tastes, rather than
those of the public. See J. Lohman and G. Misner, supra note 128,
II, at 204.
142. For a discussion of the advantages and disadvantages of internal
review, see Note, "The Administration of Complaints by Civilians
Against the Police," supra note 124, at 516.
143. In 1966-67, fewer brutality complaints were brought to the Newark
police than to other agencies, such as the Neighborhood Legal Services
Project. New Jersey Report, supra note 128, at 36. In addition to the
citizen apathy and fear of retaliation mentioned at notes 122 and 125,
supra, other factors may discourage complaints by minority groups.
Some persons evidently are disposed never to trust an agency against
which they have a grievance. Kerner Report, supra note 80, at 310.
"If the black community perceives the police force as an enemy of
occupation, then they are not going to take the trouble to file their
complaints with the enemy." Niederhoffer, supra note 123, at 295.
144. We believe that an internal review board in which the police depart-
ment itself receives and acts on complaints regardless of its efficiency
and fairness, can rarely generate the necessary community confidence,
or protect the police against unfounded charges." Kerner Report,
supra note 80, at 162.
145. "Perhaps the single most potent weapon against unlawful police
violence is a police commander who will not tolerate it. The converse
is also true: where police leaders assume a permissive attitude toward
violence by their men, they are often licensing brutality." United
States Commission on Civil Rights, 1961, Commission on Civil Rights
Report: Justice, V, supra note 59, at 82.
146. See Report of the President's Commission on Crime in the District
of Columbia (Washington, D.C.: Government Printing Office, 1966),
at 219-23.
147. Crime Commission, supra note 62, Task Force Report: The Police,
at 200.
148. A. Black, The People and the Police 78 (1968). The author, who was
Chairman of the New York Civilian Review Board, blamed the referen-
dum results on an extensive publicity campaign against the board
speared by the Fraternal Order of the Police and the fact that a
"yes" vote at the polls was curiously a vote against the CCRB.
Id. at 208-15.
149. Id. at 86-87.
150. Id. at 113-15.
151. Id. at 93.
152. Id. at 122-26.
153. Id. at 130.
154. Id. at 94.
155. Id. at Appendix IV.
156. Id. at 101.
157. Id. at 100.
158. Crime Commission, supra note 62, Task Force Report: The Police,
at 201.
159. See table in J. Lohman and G. Misner, supra note 128, at 236.
160. See table in id. at 245.
161. Id. at 259.
162. Coxe, supra note 139, at 183-184.
163. See table in J. Lohman and G. Misner, supra note 128, at 254-255.
164. Id.
408 Report of the Task Force on Law and Law Enforcement
165. Id. at 255.
166. Coxe, supra note 139, at 185.
167. See table in J. Lohman and G. Misner, supra note 128, at 236.
168. Coxe, supra note 139, at 183-84.
169. J. Lohman and G. Misner, supra note 128, at 253.
170. Note, "The Administration of Complaints by Civilians Against the
Police," supra note 124, at 514.
171. J. Lohman and G. Misner, supra note 124, at 239.
172. See id. at 213-25, 261-65.
173. Judge Weinrott of the Court of Common Pleas of Philadelphia County
last year reaffirmed his March 1967 ruling that since the PAB had
functioned as a judicial tribunal and not as an advisory board, it was
an illegal extension of the Mayor's powers. Philadelphia Evening
Bulletin, Nov. 14, 1968, at 9.
174. See supra note 148.
175. J. Lohman and G. Misner, supra note 128, at 262.
176. This image probably poisoned the other incidents of review board
activity as well. Police investigations for the board may have been
colored by the temptation to save a fellow officer from persecution at
a hearing. Similarly, many a complainant must have decided filing
a grievance was not worth incurring the wrath of the police at a
formal trial.
177. Kerner Report, supra note 80, at 162.
178. Crime Commission, supra note 62, Challenge of Crime in a Free
Society, at 103.
179. See, e.g., Walter Gellhorn, Ombudsman and Others (Cambridge:
Harvard University Press, 1966) ; Gellhorn, When Americans Com-
plain: Governmental Grievance Procedures (Cambridge: Harvard
University Press, 1966) ; Donald C. Rowat, ed., The Ombudsman,
Citizen's Defender (London: Allen and Unwin, (1965) ; Stanley V.
Anderson, ed., Ombudsman for American Government? (Englewood
Cliffs, N.J.: Prentice Hall, 1968).
180. Rowat, "The Spread of the Ombudsman Idea," in Ombudsman for
American Government?, id. at 7.
181. See Bexelius, "The Ombudsman for Civil Affairs," in The Ombudsman,
Citizen's Defender, supra note 179, at 22, 28.
182. The following description of the ombudsman's powers is taken from
Gwyn, "Transferring the Ombudsman," in Ombudsman for American
Government?, supra note 179, at 27, 38-40.
183. W. Gellhorn, When Americans Complain: Governmental Grievance
Procedures, supra note 179, at 192.
184. Id. at 191.
185. Id. at 193.
186. Id. at 191.
187. Kerner Report, supra note 80, at 284.
188. J, Lohman, and G. Misner, supra note 128, at 284.
189. Rowat, supra note 179; and Gellhorn, Ombudsman and Others, supra
note 179.
190. See also, Kerner Report, supra note 80, at 163.
191. Both the Michigan State Field Survey, supra note 122, and the
President's National Advisory Commission on Civil Disorders, supra
note 80, at 162-3, made similar recommendations for strengthening
police-community relations. Without reviewing in detail their con-
clusions, we note that our proposal differs in material respects from
both.
The Michigan State study proposed an external agency which
would entertain appeals from internal review, conducting independent
investigations and publicizing its findings of fact. However, filing
Securing Police Compliance With Constitutional Limitations 409
complaints in the first instance with the police retains all of the
defects of internal review sluggishness and the appearance of bias;
in this regard, by focusing on the efficacy of internal review rather
than on the resolution of complaints, the Study has merely embellished
Gellhorn's ombudsman. Moreover, its proposed agency would not
perform the conciliation function which we consider imperative.
The Kerner Commission's proposal cured these defects by empower-
ing its external agency to process all complaints in their inception
and to engage in conciliation. However, the Commission, in its sketchy
recommendations, appeared to go further than necessary to accom-
plish these goals. In the first place, it suggested the agency be
authorized to institute suit in cases of unlawful police conduct.
Second, it indicated that fact-finding functions should be performed
in an adversary proceeding, in the presence of complainant and his
counsel. Both of these suggestions, if enacted, would convey the
impression that agency efforts were directed solely against the police.
The first would place the ombudsman in the role of advocate rather
than arbiter in situations where other means can be utilized to secure
judicial relief. The second sacrifices the speed and informality we
deem absolutely essential for conciliation.
CHAPTER 18
CITIZEN INVOLVEMENT IN LAW
ENFORCEMENT*
When discussing the crime problem, people turn to the police,
the government, and the courts and ask "Why don't they do
more?" Rarely do they ask "What can I do?" Individual activity
against crime usually reveals itself in sporadic bursts of indig-
nant response to a specific act or a series of acts of crime, to
the sensational, or to the crime that got a little too close to
home this time.
Nonetheless, the citizen can do a great deal to help not only
the police and the community, but also himself. In fact, there
is a need for citizen involvement in crime prevention and law
enforcement, as some communities have shown by their active
cooperation.
THE INDIANAPOLIS EXPERIENCE
In October 1961, an elderly retired psychologist, Dr. Margaret
Marshall, was fatally beaten by a teenage purse snatcher on
her way home from church in Indianapolis. In the wake of the
attack, police and local newspapers were peppered with phone
calls and letters from women, demanding that "something be
done" to make the streets safe after dark.
It occurred to Eugene S. Pulliam, assistant publisher of The
Indianapolis News, that the women themselves might have some
valuable ideas, so he asked Mrs. Margaret Moore of the paper's
public-relations department to look into the matter. Mrs. Moore
called together 30 leaders of Indianapolis women's clubs for a
brainstorming luncheon. Counting on their clubs for fund rais-
ing and as reservoirs of volunteers (together they represented
some 50,000 Indianapolis women), the leaders mapped out
several committees, each to tackle a specific factor the women
felt to be contributing to the city's overall crime pattern. Thus,
the Indianapolis Women's Anti-Crime Crusade was born. 1
* This chapter was prepared by Judith Toth of Washington, D.C.
411
412 Report of the Task Force on Law and Law Enforcement
During this period, retail stores, service stations, banks, and
other places of business had been frequent victims of burglary
and armed robbery. All business people were faced with the
threat of higher insurance costs because of increased frequency
and greater severity of crimes. The Indianapolis Chamber of
Commerce began to take an active role in upgrading law enforce-
ment. It solicited emergency funds from private firms and
formed the Special Committee on Law Enforcement. This com-
mittee, in turn, was made up of task forces on the various
aspects of crime control uniformed police, the investigative
division (principally the Detective Division), courts and prose-
cution, public information, and legislation. The Chamber of
Commerce and the city government jointly financed a study on
police reform by the Indiana University Center for Police Ad-
ministration that led to substantial reforms in police operational
techniques and organization during 1963-64. 2
Other organizations have subsequently participated in the
Indianapolis anticrime movement. One such group is the Citi-
zens Forum. Formed in 1967 for a clean-up and beautification
campaign, it has since that time organized a large number of
block clubs and has broadened its activities to include self-help
and crime-awareness programs.
Numerous church and social clubs have similar programs;
organizations attack the social and economic causes of crime.
The Volunteer Advisory Council and Citizens Against Poverty,
for example, have focused on the problem of unemployment in
Indianapolis.
In 1967, The Indianapolis Star initiated a program called
"Crime Alert." A special police department number was pub-
licized with the help of the Chamber of Commerce and the local
merchants. Citizens could call this number to report not only
crimes but also suspicious situations or persons. Police response
was guaranteed even if the caller chose to remain anonymous.
The citizen involvement campaign has contributed to a slow-
down in the growth of the overall crime rate in the Indianapolis
metropolitan area. In particular, these programs, especially
the Crime Alert Program, have discouraged the commission of
crimes of burglary and robbery. Groups like the Volunteer
Advisory Council and Citizens Against Poverty have, at the
same time, fought unemployment in Indianapolis, recognizing
that increase in employment and the decrease in crime are more
than casually related. Also, among other things, a vigorous
city administration has kept playgrounds open and youth occu-
pied, thus contributing to a decrease in delinquency.
For all the success that the anticrime campaign has had in
Indianapolis, it has nevertheless been subjected to some criti-
cism. These groups, many feel, deal not with the causes of crime
Citizen Involvement in Law Enforcement 413
but with acts of violence per se, and therefore offer only short
range solutions to the problem of crime in their city. More-
over, say the critics, some groups are repressively paternalistic
and their fervor to "clean up their city" has vigilante undertones.
There is, however, reason to be optimistic about the idea of
citizen involvement in law enforcement after studying the
example of Indianapolis. In many cases, these groups have had
good liaison with the police force, which respects their judge-
ment and helps them to solve community problems. Experiments
and pilot projects in other cities have been equally encouraging, 3
leading to the conclusion that citizen participation in law en-
forcement has a promising future.
THE DANGER OF VIGILANTISM
Citizen action in crime control is nothing new in the United
States. Prior to 1833, no paid, professional police forces existed
in this country. Sheriffs and constables had responsibility for
law enforcement, and nightwatchmen patrolled towns and vil-
lages. Extremely violent disorders were dealt with by the mili-
tary. Direct dealing with the criminal by the citizens was
common, as was ad hoc community enforcement. The result
was often chaotic, and justice was often roughly served because
of the vigilante nature of most of the citizen crime control
groups. 4
From our national experience, two major dangers apply to
citizen participation in law enforcement: first, vigilantism
volunteers exercising full police powers with no police disci-
plines and few legal constraints and, second, the anti-police
patrol a community organization created independently of and
in opposition to the police and serving as a roving check on its
behavior. 5 Vigilantism will inevitably produce oppressive and
unfair practices, while anti-police patrol will worsen police-
citizen relations by bringing the two groups into organized con-
flict. 6 Because of these dangers, therefore, individuals and
groups should participate in the fight against crime in conjunc-
tion with officially sanctioned programs. Independent, unofficial
action directs itself toward fighting the deeply rooted causes of
crime like poverty and discrimination, and toward assuming
personal responsibility for reducing the temptation to commit
crime.
THE INFORMED CITIZEN
The single most important ingredient of improved citizen
participation in the law enforcement process is improved under-
standing of the law and of its enforcers, the police. This can
414 Report of the Task Force on Law and Law Enforcement
come about only through programs of education. Too few people
really know their rights and responsibilities under the law, and
fewer still understand the "twilight zones" between dissent and
civil disobedience, liberty and license, legitimate protest and
anarchy.
Most elementary and high school teachers have not been
trained to teach about the interrelationships of law, government,
and society. The old discipline of "civics" has largely dis-
appeared from many schools. Many communities now make up
for this gap by sponsoring in-school programs that provide
speakers on law and law enforcement and issue publications
geared to inform the teenager of those aspects of the law that
most directly affect him. Police departments, as part of their
developing community relations programs, send personnel into
the schools to explain such concepts as safety, crime prevention,
and drug abuse to the young.
Similar programs are being conducted with adult groups and
by adult groups in an increasing number of cities. The most
common education program currently in effect is the distri-
bution of pamphlets on a wide variety of subjects dealing with
crime prevention, and with the response to and the reporting
of crime. Local citizens groups consider the war on crime as
part of their overall programs, like beautification and recreation.
Citizens with an interest in the upkeep and value of their
property are now more aware than ever of what crime in the
community means to their pocketbooks.
Such organizations as the American Association of Federated
Women's Clubs and the National Auto Theft Bureau have con-
ducted auto theft prevention campaigns in several cities by
accompanying the police on their rounds, by leaving pamphlets
in unlocked cars, and by attaching warnings to parking meters
on the dangers of leaving keys in the ignition. 7 Several cities,
under the auspices of the Department of Justice, have initiated
educational programs to inform the public about what it can
do to fight crime. Newspapers, television, and radio have taken
upon themselves a responsible community service role by con-
stantly reminding people of what they can do when faced by
crime.
The Oakland, California police department initiated in March
of 1969 an education and action program called "Operation
Involvement." This project is a controlled experiment, financed
and manned by the department itself, that attempts to reach
every homeowner, resident, and businessman in defined geo-
graphical areas to explain the crime problem and the problems
of the police, to urge citizents to report crime, to teach citizens
how to prevent crime, and to restore a sense of community and
mutual reliance in the neighborhood. This umbrella program
Citizen Involvement in Law Enforcement 415
will eventually expand to the entire city. To date, it has already
effectively cut home burglaries and car thefts in the experi-
mental areas.
CITIZEN PROGRAMS
Citizen involvement programs sanctioned by, and often
directed and funded by, the police have been tried with varying
degrees of success in cities throughout the country. Such pro-
grams could help many communities where, according to needs
and capabilities, they can be combined, adapted, or rejected.
CITIZEN AUXILIARIES
Crime has dropped 40 percent since the fall of 1968 in the
107th Precinct in Queens, N.Y., for example, because of the
efforts of 120 male residents of the Electchester Housing
Project who have volunteered their time to the New York City
Police Auxiliary. The auxiliary, under the command of Captain
Amile Racine, is the largest volunteer police force in the world
with about 3,700 active men and women participants.
Candidates are carefully screened, then enrolled in 40 hours
of course work. An auxiliary policeman is considered active
when he contributes 20 hours of volunteer time per quarter.
The volunteer must buy his own uniform and equipment, but
he does not wear a gun unless licensed to do so for other reasons.
The auxiliary police generally patrol in pairs in or near the
precinct where they live.
The New York Auxiliary Police assist in preventing major
racial outbreaks, substitute for regular police during civil dis-
orders, participate in traffic and crowd control, in locating
witnesses, and in other police chores thus relieving the pro-
fessional of time-consuming jobs which often keep him from
performing his primary law-enforcement function.
Similar, although smaller, auxiliary forces exist in other cities
throughout the country. The one in Indianapolis is one more
cog in the crime-fighting mechanism which has contributed to
that city's success. Cities like Denver, Col., have volunteer re-
serve squads trained in crowd control and traffic control, in the
use of firearms (which they generally do not carry), and in
disaster response. These men often patrol as observers in
police cars with regular officers, and they have responded to
natural disasters, such as floods, by contributing the additional
necessary personnel to patrol and to safeguard the city.
Auxiliaries put more sets of eyes and ears on to the street to
detect crimes and summon the police ; they thus deter criminals.
James Q. Wilson has recently described citizen auxiliaries as
416 Report of the Task Force on Law and Law Enforcement
perhaps "the single most effective addition to police practice,"
and he has urged that the President of the United States use
his office and prestige to enlist citizen interest and action in
such programs. 8
Citizen auxiliaries could be greatly improved if they could
reimburse volunteers for or provide them with their uniforms
and equipment, as well as compensate them for services in many
cities where there is a shortage of police manpower. Their
most valuable contribution may be relieving the regular police
from activities not directly associated with crime, such as traffic
and crowd control. 9 Short of creating a separate agency for
these functions, this may prove the most effective means of
freeing well-trained and badly needed personnel for normal
police activities. 10 Also, citizen auxiliaries, especially the women
volunteers, could provide relief at the precinct houses from the
volume of paper w r ork that must be handled by regular police.
YOUTH PATROLS
Youth patrols have become increasingly comon in our cities
in recent years. Most began as riot control units when local
citizens insisted that, if left alone, they could bring their com-
munities under control. A notable example is the young men
in Tampa, Fla., who are called "White Hats" because of their
distinguishing helmets. The White Hats, during the summer
disorders of 1967, were decisive in quieting the city. Instead
of disbanding afterwards, they continued by acting as advisors
to the Commission on Human Relations on the problems of the
people who live in Negro slums, and by maintaining their un-
armed patrols. 11
Like many other cities, Atlanta, Ga. initiated an experimental
Junior Deputy Program in the summer of 1968 that was so
successful that it continued in the summer of 1969. In addition,
the police department has a general youth program involving
some 2,000 young people in recreational programs. The Junior
Deputy Program is designed to improve community relations.
Each young man (minimum age 17) is called a Community
Service Officer and he patrols his neighborhood.
So successful have the Youth Patrols been around the country
that cities that have not yet organized them have, for the most
part, put them under serious consideration. In March of 1968,
New York conducted a one-week experiment to study the feasi-
bility of maintaining such a group on a permanent basis. This
idea of having young men from New York City ghetto areas
patrol the areas in which they live in an effort to bring services
directly to the people and help combat crime was, considering
the short period alotted for the experiment, very successful.
Citizen Involvement in Law Enforcement 417
The 22 young volunteers, found through community groups,
churches, and word of mouth, were assigned in platoons to
beats in the areas between Fifth and Seventh Avenues and
110th and 127th Streets. They were equipped with walkie-
talkies, and wore "uniforms" of tan and brown jackets. During
their 11 a.m. to 2 a.m. duty, they broke up fights, reported
suspicious situations, escorted women from work to home, and
reported such things as potentially dangerous uncollected refuse,
unsecured vacant buildings, defective trash barrels, pot holes,
and abandoned refrigerators with doors that had not been re-
moved. The success of the experiment was indicated by the
favorable response of the community to their many services
and by the enthusiasm of the participants for the program. 12
The city of New York is now seriously planning to make the
program permanent.
This most important aspect of having youth patrols is that
the police department has out on the street agents who can
communicate with their contemporaries. Crime has risen most
in the 16-25 age group, and many of these young people are
out of reach of not only the police, but of older people in
general. Giving members of this age group their own "Mod
Squad" or patrol may help to restore their trust in the police
and to break down the ever growing barriers between them.
VOLUNTEER RECEPTIONISTS
New York City precinct stations receive more than five million
calls for help a year, a large percentage of which are not related
to the law enforcement function of the police. In December
1967 the Department began a pilot program in which twenty
housewives and other women volunteers living in the 23d Pre-
cinct worked on Friday and Saturday nights at the station on
104th Street, learning the needs and listening to the requests
of local residents. The Ford Foundation subsequently granted
funds to the Police Department for expansion of the program
to two more precincts.
The receptionists' duties include greeting visitors, providing
information, or putting the inquirer in touch with the appro-
priate official in the station or in a city agency. Police Com-
missioner Howard R. Leary has expressed the hope that this
program will reduce the friction between his men and the com-
munity by "humanizing the police," while at the same time
permitting the station houses to provide greater service to the
people living in the slums by offering advice and counsel on
their health, housing, education, and welfare programs.
418 Report of the Task Force on Law and Law Enforcement
COMMUNITY CENTERS
Programs such as the Community Action Center in Washing-
ton, D.C., are being conducted throughout the United States by
urban police departments. The purpose is like that of the
volunteer receptionists to bridge the gap between the citizenry
and the police in order to make the "system" a little more respon-
sive to the people while at the same time facilitating the work
of the police in law enforcement. The pilot project in the 13th
Precinct in Washington is to engage paid resident workers in
satellite centers to provide around-the-clock assistance to citi-
zens referred by police on patrol as well as to those who walk
in off the street.
Denver's Police Department has an on-going community rela-
tions program in which citizens meet every Wednesday evening
at the precinct stations to voice their grievances. This program
has met with varying degrees of success depending on the pre-
cinct and, as has been the experience in Washington and other
cities, the meetings often deteriorate into shouting matches
where everyone gets "off his chest" what has been bothering
him about the police or the public during the previous week.
Chaotic as these meetings may sound, they have often been
constructive in restoring communications within the community
between the police and the people and in giving both sides a
channel for expression. 13 As one community relations director
explained, "I would rather have them shout at me there than
to have them ignore me or hate me out on the street when I
really need them."
Experience has shown, however, that programs like these are
extremely fragile and that failure may preclude additional pro-
grams for some time to come. Care must be taken at the outset
to fully understand and outline the boundaries of and barriers
to action in the community.
IMPROVED CRIME REPORTING
Generally, when one wants to call the police, the number must
be looked up. Most people still do not keep emergency numbers
handy and many do not know who to call, especially in the case
of overlapping jurisdictions (city, state, park police, etc.). In
some cities, several numbers are listed for the same police
department. Precincts often have different telephone numbers
from one another. In an emergency, this bcomes an impossible
situation for most people. Frequently, people dial the operator,
explain the situation and trust her to get response from the
proper authorities.
Information campaigns, publicizing one emergency number,
Citizen Involvement in Law Enforcement 419
have been successful in a number of cities. Programs such as
Crime Alert in Indianapolis, Chec-Mate in Saginaw, Mich.,
Crime Check 14 in Omaha, Neb., to name a few, facilitate the
reporting of crime and of suspicious situations.
Under these programs, a central switchboard emergency num-
ber is well publicized, and calls are immediately put through to
a dispatcher. In some cases, the caller need not identify him-
self or become "involved" beyond making the phone call.
In Omaha, in the two weeks after official announcement of
Crime Check, the call load went up 11 percent, a considerable
increase. In the first seven months of the Indianapolis program,
police dispatchers received 63,547 additional calls, and 1,041
more arrests were made than in the corresponding period in
1966.
In all cases where rapid telephone crime reporting has been
effective, the program has had the complete support of local
businessmen, the press, the government, and police, as well as
of the general public. Sustained interest in and promotion of
this program seems to be its most essential ingredient.
Some cities have simplified reporting even further by recently
installing a special short telephone number, "911." Pay phones
have been converted to give a free dial tone so that the operator
can be dialed without the usual dime. Strong arguments support
a nationwide, universal telephone number such as "911" similar
to the programs which now exist in Belgium, Denmark, Sweden,
and England. 15 The best reason is the speed with which one
obtains the proper authority in an emergency. Secondly, re-
sponse time, especially in crimes of violence, is extremely
important to "hot" apprehensions. Catching a criminal on or
near the scene of the crime is possible only if the policeman is
on the spot or called in immediately. Rapid response may save
the police department hours, even days, of investigation and
pursuit in the apprehension of a criminal. 16
Another method of crime reporting that is catching on is the
telephone chain. In this case, citizens, especially businessmen,
are urged to keep in touch with one another and with the police
and to keep an eye out for the others' property. If they see a
suspicious circumstance, they immediately call the police and
one another. The Neighborhood Crime Prevention Council in
Seattle, Wash., sponsors a program of this type, as does the
Harbor Division of the Los Angeles Police Department.
More and more police departments are also urging citizens
to let them know about anything going on in the community
that would affect their work. In Portland, Ore., for example,
the Sheriff's Office has been passing out leaflets that say "Do
you know something that the sheriff of Multnomah County
should know? By addressing a letter to me and marking Ter-
420 Report of the Task Force on Law and Law Enforcement
sonal 'on the envelope you can be sure that I will personally
read your letter. P.S. You may remain anonymous if you wish."
This technique does bring in an expected number of crank
letters, but occasionally it yields information about a pending
or past crime that makes the program worthwhile.
In addition to these crime-reporting programs, Motorola
Communications and Electronics, Inc., has sponsored over the
past two years a Community Radio Watch program, which has
been formally adopted by nearly 700 American cities and towns.
Each city enlists the cooperation of individuals and companies
with two-way radio equipped vehicles, asking each driver to
act as additional "eyes and ears" for the police. Typical calls
by observant drivers include highway accidents, gang fights,
burglaries, medical emergencies and fires. As a public service,
Motorola makes available all the necessary materials in any
quantity to any community, free of charge. (Community Radio
Watch, 1301 East Aglonquin Road, Schaumburg, 111. 60172).
BLOCK MOTHERS
A program which is becoming popular throughout the nation
is the block mother, or "helping hands," program. Responsible
women are trained by social welfare and police officials to care
for and supervise children and to interview adolescents and
older youths. The program is designed to prevent the isolated
problem of child molesting and also to provide emergency baby-
sitting or supervision of older youngsters. Any threatened,
frightened or run-away child can seek refuge in the home of a
block mother who displays a "clasped hands" sign in the front
window. This program is especially effective in urban ghettos
where large numbers of children are concentrated in a small
area.
PREVENTIVE PATROLS
The neighbrohood patrol is perhaps the oldest form of law
enforcement. It is generally set up by assigning evening shifts
to pairs of volunteers within a defined community who drive
or walk around keeping their eyes open for lingering strangers
or anything out of the usual. Given enough willing volunteers,
this can effectively deter burglars and vandals, and it adds the
extra eyes to the neighborhood after dark which the police need.
YOUTH ACTIVITIES
The best deterrent from crime for the young is to keep them
busy in constructive activity. To this end, it is the responsibility
Citizen Involvement in Law Enforcement 421
of not only the family and the government, but the community
at large, to provide the activities and facilities necessary to
attract young people. Citizens groups should urge more and
better equipped parks and club houses. After-school and summer
programs should offer variety and challenge. Young people
should be urged to join organizations like the Y.M.C.A., Boy
Scouts, and the local Boys' Club. Gangs should be engaged in
constructive activities. Teen-age boys can be involved in edu-
cational as well as financially rewarding activities. Employers
should be encouraged to give part-time employment as a viable
alternative to "hanging out" and looking for excitement in the
form of criminal activity. 17
The problem today seems to be a shortage of adults willing
to donate their time and energy to youth activities. Many are
too busy or too tired after work to pitch in the few extra hours
of volunteer time necessary to assure the success of a program.
This seems to be the malaise of parents and adults in general
these days. Yet, in order to get at the problem of juvenile
delinquency, the community has to meet the young people half-
way in terms of commitment by providing the large number
of volunteers required.
CITIZEN PRESSURE GROUPS
Citizen groups have been very active in promoting anti-crime
educational programs. Yet they have another role of equal im-
portance, that of actively participating in community planning
and in pressuring the government at the local level to provide
recreational facilities, well-lit streets, and adequate police forces.
Also, like the Chamber of Commerce in Indianapolis, they can
form study groups or task forces in order to better understand
the system and to operate as informed pressure groups. Most
important for the citizens group is getting attention focused on
the deeply-rooted economic and social causes of crime.
ANTICRIME ORGANIZATIONS
The National Council on Crime and Delinquency is perhaps
one of the oldest organizations in this country with the singular
purpose of reducing crime. Similar groups are being established
throughout the country as public awareness of the burgeoning
crime rate has increased. These organizations conduct research
into the causes and prevention of crime, as well as programs
designed to improve police methods, court procedures, the cor-
rections system, and citizen involvement. They depend primarily
on individual citizens, companies, and foundations for financial
support. Groups of this type, when broad-based, can be very
422 Report of the Task Force on Law and Law Enforcement
effective through their programs and should receive more sup-
port from federal, state and local governments. They should
be discouraged only when they take on political overtones or
adopt an extreme ideological approach to crime.
THE INVOLVEMENT OF THE INDIVIDUAL
Perhaps the most effective role against crime the individual
can take is getting out and actively pursuing solutions with his
neighbors. Through civic associations, block organizations,
church groups, and direct action groups the individual can
participate. He can volunteer his time and/or money to pro-
grams designed to improve the material and human resources
of the community. He can attack some of the underlying causes
of crime such as poverty or lack of education, or he can deal
directly with juveniles, ex-convicts, and dope addicts to prevent
crime. In any respect, commitment and involvement are a solu-
tion far better, more extensive and beneficial to society than
arming oneself and hiding behind locked doors waiting for
them (the government, the police, the courts, the elected rep-
resentatives) to do it all.
The individual also has the opportunity on a day-to-day
basis to prevent crime by reducing the opportunity to commit
it. Many crimes would not be committed, indeed many criminal
careers would not begin, if there were fewer opportunities for
crime. The victim is often an unconscious accessory to the crime
through neglect, ignorance or naivete. The individual should
take action in this respect by educating himself with regard to
protection of property and making a conscious effort to remove
temptation to crime.
Crime is made attractive and easy by the citizen who leaves
his keys in his car, his house unlocked and unlit, or his news-
papers on the doorstep when he is away. The most blatant
example of citizen negligence is auto theft. According to F.B.I.
statistics, the key had been left in the ignition or the ignition
had been left unlocked in 42 percent of all stolen cars.
Homeowners and apartment dwellers are also careless. One-
fifth of the burglaries were made easier for thieves because
residents left the doors or windows unlocked. Other burglaries
can be traced to giving keys to unknown repairmen and allow-
ing newspapers to pile up, or similar acts tipping off the burglar
that the family is away.
Many crimes would not occur if individuals had proper locks
on their doors and windows and enough lighting to discourage
prowlers. Simply leaving a light on inside the house while
absent may be enough to keep a prospective burglar away.
Businessmen are also careless and need to be better informed
Citizen Involvement in Law Enforcement 423
about locks, lights, and alarm systems to protect their property. 18
Obviously, the individual can do much to combat crime. Since
people neither want to be the victims of crime nor to live in
fear of crime and since they care about crime, why are they not
more motivated to do something about the apparently spiralling
crime rate?
A survey by the President's Commission on Law Enforcement
and Administration of Justice asked people whether they had
ever "gotten together with other people around here or has any
group or organization you belong to met and discussed the prob-
lem of crime or taken some sort of action to combat crime?" 19
Only 12 percent answered yes, although the question was quite
broad and included any kind of group meeting or discussion.
Also most persons did not believe that they as individuals could
do anything about crime in their neighborhoods; just over 17
percent thought that they could do something about the situation.
Yet, there are more than one million independent volunteer
organizations in the United States, 320,000 churches with more
than 100 million members, 2,000 united funds and community
chests, 35,000 voluntary welfare organizations, 36 million
Americans in fraternal and service organizations. A nationwide
poll estimates that sixty one million adult Americans would,
if asked, contribute 245 million man-hours every week to volun-
tary activities. 20
The problem of non-involvement goes even deeper than failure
to participate in crime prevention programs, however. In recent
years, the media have been filled with stories of passive by-
standers, remaining aloof and inactive although witnessing a
crime which could be forestalled or interrupted by an action as
simple as a telephone call.
Psychologists John M. Barley and Bibb Latane have made
an experimental study of why bystanders do not respond during
the actual commission of a crime or other crisis. They conclude :
It is our impression that nonintervening subjects had
not decided not to respond. Rather, they were still in a
state of indecision and conflict concerning whether to re-
spond or not. The emotional behavior of these nonrespond-
ing subjects was a sign of their continuing conflict, a
conflict that other people resolved by responding. The dis-
tinction seems an academic one for the victim, since he
gets no help in either case, but it is an extremely important
one for arriving at an understanding of why bystanders
fail to help.
Thus, the stereotype of the unconcerned, depersonalized
homo urbanis blandly watching the misfortunes of others
proved inaccurate. Instead, we find a bystander to an
emergency is an anguished individual in genuine doubt,
424 Report of the Task Force on Law and Law Enforcement
concerned to do the right thing but compelled to make com-
plex decisions under pressure of stress and fear. His
reactions are shaped by the actions of others and all too
frequently by their inaction. 21
As this study simply points out, the individual, when fnced
with immediate crisis, has to make a series of decisions, all of
which are influenced by the presence of other people around him.
He must first notice that something is happening. He must then
interpret that event as an emergency, and then he must decide
that he has personal responsibility to intervene. If he fails to
notice an emergency, or if he concludes that he is not personally
responsible for acting, he will then leave the victim unhelped.
Group behavior is quite different from individual behavior.
Barley and Latane use this illustration, among others:
If your car breaks down on a busy highway, hundreds
of drivers whiz by without anyone's stopping to help ; if
you are stuck on a nearby deserted country road, whoever
passes you first is apt to stop. The personal responsibility
that a passerby feels makes the difference.
A driver on a lonely road knows that if he doesn't stop
to help, the person will not get help; the same individual
on the crowded highway feels that he personally is no more
responsible than any of a hundred other drivers. 22
The individual, then, can decide that when he next confronts
a fellow citizen in apparent danger or distress he will take some
action, on the chance that the other fellow does in fact need his
help ; he will stop at the next gas station and report the plight,
he will pick up the telephone and call the police, he will ask the
other fellow if he needs help.
At the level of the community, leaders are needed who can
mobilize individual citizens into action against crime. These
citizens are not usually inactive out of apathy, but because so
many others are inactive, and because personal responsibility
has been so effectively diluted. Appropriate leadership can tap
these resources .
CONCLUSION
The entire social fabric of our urban areas is being altered
by the changing patterns of conduct of our "law-abiding citi-
zens." The single most damaging of the effects of violent crime
is fear, and that fear must not be belittled. 23 This fear, accord-
ing to the President's Commission on Law Enforcement and
Administration of Justice, "has greatly impoverished the lives
of many Americans, especially those who live in high-crime
Citizen Involvement in Law Enforcement 425
neighborhoods in large cities. People stay behind locked doors
of their homes rather than risk walking in the streets at night.
Poor people spend money on taxis because they are afraid to
walk or to use public transportation. Sociable people are afraid
to talk to those they do not know." 24
America is slowly becoming a fortress society each man
standing alone in fearful defense against his fellow man. We
are losing the valuable traditions of community cooperation
and personal responsibility for the welfare of the whole. This
trend must be reversed by citizen involvement of the kind
discussed in this chapter and in the earlier chapter on "The
Nonsystem of Criminal Justice/'
REFERENCES
1 Medford Stanton Evans and Margaret Moore, The Lawbreakers (New
York: Arlington House, 1968).
2 Chamber of Commerce of the United States, "Indianapolis Chamber
Leads in Upgrading Police Quality," Urban Action Clearing House (Wash-
ington, D.C.: Oct. 1968).
3 At this writing, every major city in the United States has some type of
citizen involvement program in the works.
4 See the President's Commission on Law Enforcement and Administra-
tion of Justice (hereinafter cited as Crime Commission), Task Force Report:
The Police (Washington, B.C.: Government Printing Office, 1967), for a
history of law enforcement in the United States.
5 An example of an anti-police patrol is the "Better Berkeley Council"
which last fall was mustering some 20 persons every Friday and Saturday
nights to check on the operation of police patrolling Telegraph Avenue in
Berkeley, Calif. See San Francisco Chronicle, Oct. 7, 1968, at 5.
6 This is not to say that the citizen should not concern himself with police
ineptness, corruption, or brutality. Rather, he should confine his means of
protest to channels other than indiscriminate harassment of the "cop on
the beat." This can be counterproductive by simply lowering the morale of
the police and resulting in an even less effective police force. There are
many legitimate means of registering concern open to citizens.
7 Crime Commission, supra note 4, Task Force Report, The Police, at 222.
8 James Q. Wilson, "Crime and Law Enforcement," in Agenda for the
Nation, ed. by Kermit Gordon (Washington, D.C.: Brookings Institution,
1968), at 186, 206.
9 Except control of protest parades and similar demonstrations, which
should be handled by highly-trained, well-disciplined police regulars.
10 Oakland, Calif., is initiating a program with LEAA funds that will
start with ten "police representatives" who are not required to have the
training of full-fledged police officers, but can more than adequately per-
form many police functions such as traffic and crowd control. This program
has caught on in other areas with varying degrees of success.
11 See for complete background Terry Ann Knopf, Youth Patrols: An Ex-
periment in Community Participation (Waltham, Mass.: Brandeis U., The
Lemberg Center for the Study of Violence, 1969).
12 George Nash, The Community Patrol Corps: A Descriptive Evaluation
of the One-Week Experiment (New York: Columbia University, Bureau of
Applied Social Research, May 1968).
426 Report of the Task Force on Law and Law Enforcement
13 Eleanor Harlow, "Problems in Police-Community Relations, A Review
of the Literature," Information Review on Crime and Delinquency, vol. 1,
No. 5 (New York: National Council on Crime and Delinquency, Feb. 1969).
14 Crime Check is a nationwide project of the International Association of
Chiefs of Police, Inc.
is Roger W. Reinke, "A Universal Police Telephone Number," The Police
Chief (Washington, D.C.: International Association of Chiefs of Police,
Feb. 1968), at 10-16.
16 Crime Commission, supra note 4, Challenge of Crime in a Free Society,
at 97.
I? Pride, Inc. in Washington, D.C. (and expanding into other major U.S.
cities) is a prime example of entrepreneurial involvement of young people
who might otherwise become delinquents.
18 See U.S., Congress, Senate, Crime Against Small Business: A Report
of the Small Business Administration Transmitted to the Select Committee
on Small Business, S. Doc. 91-94, 91st Cong., 1st sess., 1969.
19 BSSR study, unpublished supplement, as quoted in the Crime Commis-
sion, supra note 4, Task Force Report: Crime and its Impact An Assess-
ment, at 91.
20 From address by John N. Mitchell, Attorney General of the United
States, before the Conference on Crime and the Urban Crisis of the National
Emergency Committee of the National Council on Crime and Delinquency,
Fairmont Hotel, San Francisco, Calif., Feb. 3, 1969.
21 John M. Darley and Bibb Latane, "Are Passive Bystanders Really
Guilty?", Psychology Today, reprinted in Washington Post, Jan. 12, 1969,
at B-4.
22 Id.
23 Crime Commission, supra note 4, Challenge of Crime in a Free Society,
at 3.
24 Id. at 52.
CHAPTER 19
THE BAIL PROBLEM: RELEASE OR
DETENTION BEFORE TRIAL*
When a person is arrested on suspicion of a crime, the date of
his trial may be a year or more away. During the period which
intervenes between the arrest and trial the defendant may have
several concerns : supporting himself and often his family as
well, locating witnesses and working with his lawyer to prepare
a defense, and putting his affairs in order in case he should be
sentenced to jail. The community, on the other hand, has two
demands to make of the defendant : that he appear at his trial,
and that he refrain from endangering other people in the mean-
time.
The interests of the defendant and the community in this
pretrial period occasionally conflict. In the overwhelming major-
ity of cases, the device used by American courts to accommodate
these varying concerns is still the anachronistic and inappropri-
ate system of money bail. Today this system is under increasing
attack for not serving the interests of either the community or
the defendant. But even the few jurisdictions that have at-
tempted to replace the money bail system with other methods of
pretrial release have been unable to preclude all unnecessary de-
tentions or to prevent those released from committing crimes
while they are awaiting trial. As a result, an explicit policy of
"preventive detention" keeping selected defendants in jail un-
til their trials has been gathering increased support.
THE ORIGINS OF MONEY BAIL
Our bail system probably derives from the ancient institution
of hostageship, developed in England by the Germanic Angles
and Saxons. 1 As a war tactic, a hostage would be held until
another person's promise was fulfilled or some desired conse-
quence achieved. Eventually, the site of the practice shifted from
* This chapter was prepared for the Task Force by Linda R. Singer,
Associate, Kurzman and Goldfarb, Washington, D.C.
427
428 Report of the Task Force on Law and Law Enforcement
the battlefield to the courtroom. A third person a relative,
friend or clergy would come to court and vouch for a defend-
ant's trustworthiness. The defendant would be released in the
custody of the surety.
A bail system like the one in use in the United States today
developed during the first thousand years A.D. in England.
Judges traveled on circuits, and their visits to an area might be
several years apart. Until the judges arrived, prisoners were
held in the custody of the local sheriffs.
Prison conditions, however, were atrocious. Prisons were also
insecure, and inmates frequently escaped. Maintaining the pris-
ons was a financial burden. Thus, the sheriffs were happy to have
someone else assume the responsibility of maintaining custody of
defendants. They frequently relinquished defendants into the
custody of sureties, usually friends or relatives of the accused.
As English scholars have noted :
This apparent leniency of our law was not due to any love
of an abstract liberty. Imprisonment was costly and trouble-
some. Besides, any reader of the eyre rolls will be inclined
to define a gaol as a place that is made to be broken, so num-
erous are the entries that tell of escapes. The medieval
dungeon was not all that romance would make it. The main-
prise of substantial men was about as good a security as a
gaol. The sheriff did not want to keep prisoners ; his inclina-
tion was to discharge himself of all responsibility by hand-
ing them over to his friends. 2
If the defendant failed to appear for his trial, the custodian
was no longer seized bodily, but was required to pay over a sum
of money. This liability of the surety for the appearance of the
defendant, and the ability to discharge the liability by the pay-
ment of a sum of money remain the basis of our present system
of bail.
In 1275, an extensive inquest by a hundred jurors exposed
many fraudulent practices in the sheriffs' administration of the
release of prisoners on bail. As a result of the inquest, Parlia-
ment passed the first statute governing bail practices. The
Statute Westminster I established which crimes were bailable on
the presentation of sufficient sureties and which were not.
The Eighth Amendment to the United States Constitution pro-
vides that "excessive bail shall not be required." The historical
antecedents of the amendment go back to the efforts of the Eng-
lish to implement the promise of the 39th chapter of the Magna
Carta that "no freeman shall be arrested, or detained in prison
. . . unless ... by the law of the land."
Despite that provision, when five knights thrown in prison by
Charles I in 1627 brought an action for habeas corpus, release
The Bail Problem: Release or Detention Before Trial 429
was denied on the basis that the protection of the provisions did
not extend to the pretrial period. 3 Parliament responded to the
case by declaring that "the cause of imprisonment must be
known, else the statue will be of little force. . . ." 4 and went on to
adopt the Petition of Right, which, after reciting various abuses
of the power to imprison, prayed that "no freeman in any such
manner as is before mentioned, be imprisoned or detained."
The Habeas Corpus Act of 1679 provided for a procedure to
free "many of the King's subjects [who] have been and hereafter
may be long detained in prison, in such cases where by law they
are bailable. . . ." Nevertheless, judges continued to thwart the
purpose of the Act of 1679 by setting impossibly high bail. Par-
liament therefore declared, in the Bill of Rights it drew up in
1689, that "excessive bail ought not to be required. . . ."
Thus the English protection against pretrial detention came
to comprise three separate but essential elements : the determina-
tion of whether defendants had the right to release on bail ; the
habeas corpus procedure developed to implement defendants'
rights; and the protection against judicial abuse by the excessive
bail clause of the 1689 Bill of Rights.
Professor Caleb Foote, who has done extensive historical re-
search into the origins of bail, has concluded that the particular
words in which the subject of bail is dealt with in the Eighth
Amendment to the Constitution are the result of historical ac-
cident, and that the most plausible interpretation of the words,
"excessive bail shall not be required," is that they were intended
to grant a constitutional right to bail. 5 Professor Foote's inter-
pretation is that the framers intended to include all three ele-
ments of the English protection against unwarranted pretrial
detention in the Constitution. While the principle of habeas
corpus found its way into our counterpart habeas corpus pro-
vision, Article 1, section 9, and the excessive bail language was
incorporated into the Eighth Amendment, the fundamental, sub-
stantive right to bail itself, which these other remedial rights
were intended to supplement, was inadvertently omitted.
Professor Foote's explanation of the oversight is that the
phrasing of the Eighth Amendment was derived almost verbatim
from the Virginia Declaration of Rights of 1776. The Declara-
tion had been written by George Mason, who, while certainly
familiar with the ringing language of the English Bill of Rights,
was no lawyer, and probably knew nothing of the technical legal-
isms that comprised the fundamental law of bail. Although the
Federal Judiciary Act of 1789 6 granted the right to bail in all
noncapital offenses, Professor Foote stresses that any intent to
leave the establishment of such a basic right as simply a matter
of legislative discretion would have been an anomaly, in view of
the primary purpose of the Bill of Rights to protect the people
430 Report of the Task Force on Law and Law Enforcement
from abuse by the legislative branch of government. 7 Without
some right to have bail set, the proscription against "excessive
bail" would be meaningless.
Professor Foote's research would seem to indicate that all
defendants have the absolute right to bail. This view has gen-
erally been adopted by the courts except for capital offenses.
Thus, the Federal Rules of Criminal Procedure provide :
A person arrested for an offense not punishable by death
shall be admitted to bail. A person arrested for an offense
punishable by death may be admitted to bail by any court or
judge authorized by law to do so in the exercise of discretion,
giving due weight to the evidence and to the nature and
circumstances of the offense. 8
State constitutions contain similar provisions under which an
exception is made to the general guarantee of bail: only when
he is charged with a noncapital offense does a defendant have the
right to be released on bail.
BAIL TODAY: BAIL AND THE POOR
The abuses of the money bail system have received considerable
national attention in recent years. But despite empirical studies
showing the extent of detention based simply on poverty on
the failure of the poor defendant to make bail and the hardship
such detention produces, 9 despite demonstrations by the Vera
Foundation in New York that for many defendants bail is not
only inequitable but unnecessary, and despite public response to
conferences, articles, books, media coverage, Congressional hear-
ings, and a new federal law, 10 money bail remains the method of
release used most often in the United States today, 11 and the
setting of money bail in amounts that arrested persons cannot
pay is widely used as a method of preventively detaining sus-
pected habitual criminals pending their trial.
The system of money bail is based on the assumption that the
threat of forfeiture of his money or property will act as an ef-
fective deterrent to a defendant's temptation to flee before his
trial. But, as Supreme Court Justice Douglas has pointed out,
this theory is based on the assumption that a defendant has prop-
erty. 12 In fact, many defendants do not have property they can
put up for bail. With approximately one out of four families
earning less than $3,000 a year, obviously many of the people
charged with crime simply are unable to afford bail. A defendant
who cannot post bail must go to jail, lose any earning capacity at
least temporarily, and possibly lose his job. In the interim, he
The Bail Problem: Release or Detention Before Trial 431
cannot support his family, who may be forced to seek public
welfare, with the accompanying embarrassment to the family
and cost to the public. 13
Yet a defendant's ability to afford bail has little relation to the
likelihood of his committing further crimes. The system of
money bail forces the poor to go to jail because they cannot afford
to pay the premium for a bail bond.
It is difficult to rationalize the fact that
Millions of men and women are, through the American
bail system, held each year in "ransom" in American jails,
committed to prison cells often for prolonged periods before
trial. Because they are poor or friendless they may spend
days, weeks or months in confinement, often to be acquitted
of wrong-doing in the end. A man is accused of stealing a
few dollars from a subway change-booth, spends six months
in jail before trial, and is finally acquitted. Though innocent,
he has been punished by the American system of "justice."
His only crime is poverty he could not afford the $105 fee
for a bondsman to put up the $2,500 bond set by the judge. 14
According to former Supreme Court Justice Arthur Goldberg,
government in this country, both state and federal, has not done
all that can reasonably be required of it to render the economic
status of a litigant irrelevant in the operation of the bail system. 15
The system of money bail unquestionably discriminates against
the poor. 16
Pretrial detention of an accused who, were it not for his pov-
erty, would remain at liberty pending trial, is not only bad policy ;
it may also violate the constitutional right to equal protection of
the laws. The Supreme Court has held that neither the federal
government nor a state can convict an indigent of a serious crime
without providing him with counsel at the government's ex-
pense. 17 Nor can a government fail to provide an indigent with
free transcript of his trial, where a transcript is necessary to
an appeal, 18 and the type of appeal a convicted defendant is
given cannot in any way be made to hinge on whether he can pay
for the assistance of counsel. 19 But the Supreme Court so far
has not applied the equal protection guarantee to questions of
pretrial detention. Yet, as Justice Douglas has observed:
We have held that an indigent defendant is denied equal
protection of the law if he is denied an appeal on equal terms
with other defendants, solely because of his indigence. Can
an indigent be denied freedom, where a wealthy man would
not, because he does not happen to have enough property to
pledge for his freedom? 20
432 Report of the Task Force on Law and Law Enforcement
Whether or not the phrase "excessive bail" in the Eighth
Amendment was intended to provide a constitutional right to
bail, the excessive bail clause should at least be interpreted con-
sistently with the Supreme Court's other decisions prohibiting
financial discrimination against an accused. 21 The Eighth Amend-
ment proscription of excessive bail, together with the Fourteenth
Amendment guarantee of equal protection, should be interpreted
as requiring recognition that the imposition of any bail can be
excessive when it is beyond a defendant's means to provide it.
In such a case, some non-financial means of assuring the de-
fendant's attendance at trial must be found.
BAIL TODAY: BAIL AND THE UNPOPULAR
In addition to discriminating against the poor, the wide dis-
cretion allowed in setting bail enables the bail-setting power to
be manipulated to punish unpopular defendants in advance of
trial. Thus, the power of the law may be used to express the
hostility of law enforcement officers towards people who demon-
strate for civil rights and other unpopular causes. For example,
one judge in Alabama denied bail entirely when about two hun-
dred demonstrators were arrested for violating an injunction
against civil rights protests. It took a habeas corpus petition to
free them from jail. A prosecutor in one Georgia town an-
nounced that bail had been refused to several civil rights demon-
strators as a public lesson in order to teach them their place. 22
Cases like these are not unusual. 23
Bail can be set so high that it forces civil rights organizations
to limit the number of their demonstrations to those for which
they can provide large amounts of cash. One 70-year-old minister
spent 7 months in a Georgia jail after bail was set at $20,000
much more than would normally have been required, even for a
dangerous criminal whose freedom before trial might endanger
the community. The same judge set bail at $20,000 for each of
two women, one pregnant, who had been arrested for protesting
segregation at a restaurant. 24
Judges have also on occasion changed the requirements of
security to insure that defendants cannot meet them. A person
with the cash to post bail may be required to put up property as
security. If property is available, it may be required to be un-
encumbered. Finally, bail may be avoided by indicting for non-
bailable offenses. In Georgia civil rights demonstrators who did
no more than march in public were charged with attempting to
incite insurrection, a nonbailable offense, even after similar
charges in other cases had been found unconstitutional. In Louis-
iana, pickets outside a movie theatre that did not allow Negroes
were charged with criminal anarchy. 25
The Bail Problem: Release or Detention Before Trial 433
Of course, many of these demonstrators never were convicted
of a crime or were convicted, but later they had the sentences
overturned by higher courts as unconstitutional. Nonetheless,
the manipulation of the bail system served to discourage their
unpopular activities. As John M. Pratt, the legal counsel to the
Commission on Religion and Race for the National Council of
Churches, has stated :
There is no question that the use of excessive bail to deter
the demonstrations, which are constitutionally protected ac-
tivities, illustrates the worst aspect of the American bail
system. 26
Many judges also have abused their power to set bail by using
it to punish the accused. A former county probation officer re-
cently was held on $5,000 bond in Montgomery County, Md.,
pending an appeal of his conviction by a People's Court judge for
distributing copies of an allegedly obscene newspaper that lam-
pooned another People's Court judge. The $5,000 bail was set
after the defendant said he worked for a local social action group.
The judge remarked that it "was not a very stable occupation."
"You're kidding," the defendant's attorney responded. "I've
known murder cases where it wasn't that high." 27
When judges abuse their power to set bail, it is most difficult to
move the kind of prejudice or misplaced zeal that would warrant
the reversal of a ruling. Rarely can a judge's motive for setting
bail in a particular way or at a particular amount be determined
from the record. Even in the rare cases where a judge candidly
admits his purpose, the appellate process necessary to overturn
his ruling is both slow and expensive.
BAIL TODAY: THE BONDSMAN
Even were these abuses not extant, the money bail system
could be condemned simply because it has spawned the world of
bondsmen. When a judge has decided in favor of pretrial release
and has set bail in a reasonable amount, it is the bondsman who
ultimately holds the key to the jailhouse. 28 He may in effect veto
the decision of the judge by refusing to provide bail for good
reasons, for bad reasons, or for no reasons.
With few exceptions, bondsmen have refused to handle cases
arising out of civil rights demonstrations. Even where they have
provided bail, they have been known to charge higher fees in
unpopular cases. 29 On the other hand, as one of the more vocal
and candid bondsmen admitted to a television interviewer, the
need to make a profit under competitive conditions requires him
to bail out defendants even when he thinks it likely that they will
434 Report of the Task Force on Law and Law Enforcement
commit dangerous crimes before their trials. "After all, if I
don't do it, the guy next door will get his business." 30
Paradoxically, a bondsman may consider the worst kind of
professional criminal a preferred risk, and may even release him
on credit. The bondsman knows that the "pro" can obtain the
money for the premium, and that he will honor his obligation to
return for trial or post enough collateral to protect the bondsman
in case he should be called on to forfeit the bond. 31 The man's
guilt, his likelihood of flight and his danger to the community
is of little concern to the bondsman who looks upon him simply
as a sure fee, a source of business.
The professional bondsman has been given a major role in the
criminal process only in the United States and the Philippines. 32
The bondsman is a creature of the frontier conditions that existed
in early America. The comparative intimacy of smaller, more
homogenous England had given birth to a bail system that was
based on personal trust. In America, on the other hand, many
people lacked personal friends or relatives who would provide
the bail necessary for their pretrial release : the vast, unoccupied
areas to which a defendant could flee made it difficult, if not im-
possible, from private sureties to assure their attendance at trial.
Thus paid sureties came to take the place of personal sponsor-
ship. 33 Although the names of large, respectable insurance com-
panies appear on bail bonds, these companies delegate the actual
conduct of the bonding business to their agents, the local bonds-
men, who retain the ultimate power over detention. Thus the
fact that the companies comply with state insurance laws 34 has
little relation to any state control over the writing of bail bonds.
And the companies have little to lose: because of requirements
of collateral, they run no risk of default. As an investigation by
a committee of the Association of the Bar of the City of New
York divulged :
There is little doubt as to the financial responsibility of
these approved companies. Yet such a company lends
merely its name to the administration of bail, for although
it is on the bond, it runs no risk. Indeed, it has been stated
that the insurance companies have never suffered a finan-
cial loss through the writing of bonds, or hardly ever. 35
Some states limit the fees that bondsmen may charge for writ-
ing bonds ; others have no such limitations. Even though prem-
iums may be regulated, there are no controls on the collateral a
bondsman may require. And the character of bondsmen rarely
is effectively regulated ; 3G many bondsmen, it has been said, are
" 'low-lifes' whose very presence contaminates the judicial proc-
ess." 37
The Bail Problem: Release or Detention Before Trial 435
Occasional expose's have uncovered criminal infiltration of the
bail-bond business. In 1959 and 1960, two reporters for the
Indianapolis Star found that national crime syndicates had be-
come partners of bondsmen in major cities across the nation.
Even more serious is the frequent collusion between bondsmen
and the officials charged with the administration of criminal jus-
tice. Lawyers, judges, court officials and police have at times
succumbed to the enticements offered by unscrupulous bondsmen.
In 1961 a grand jury in Jackson County, Mo., investigated the
activities of bondsmen and reported that most of them were in
partnership with certain policemen. The police on the scene at
the time of arrest would steer defendants to these bondsmen in
return for 20 percent of the bonding fee. 38 Similar collusion has
been found between lawyers and bondsmen. 39
BAIL TODAY: ITS EFFECT ON THE
ADMINISTRATION OF JUSTICE
In addition to the bail system's discrimination against the poor
and the unpopular, and ite surrender of law enforcement func-
tions to bondsmen, studies have shown that defendants who can
afford bail plead guilty less frequently, are convicted less fre-
quently, and if convicted, receive shorter (or nonjail) sentences
more commonly than those who must spend the pretrial period
in jail.
The period before trial plays a crucial part in the administra-
tion of criminal justice. The Supreme Court early recognized
that the time between the institution of formal charges and the
trial is "perhaps the most critical period of the proceeding . . .
when consultation, thoroughgoing investigation and preparation
are vitally important. . . ." 40 But only in limited ways can the
jailed defendant help his attorney prepare his defense. He may
be detained at an inconvenient location or have insufficient time
available for working with the attorney, with investigators or
witnesses. He cannot make amends with the complaining witness
in an effort to have the charges dropped. He cannot help locate
witnesses or evidence. He earns no money that could be used to
help his case.
The pioneer studies of bailed and unbailed defendants in Phil-
adelphia 41 and New York 42 give support to this hypothesis. The
Philadelphia study, for example, traced the disposition of 946
cases where the defendants had spent the pretrial period on bail.
Of 529 serious criminal cases, 275 were convicted, 254 were not.
Of these 275 convicted offenders who had been on bail before
trial, only 61, or 22%, were sent to prison after conviction. Of
the 417 similar cases where defendants were held in jail before
trial, 340 were convicted, and only 77 were not. Of the 340 con-
436 Report of the Task Force on Law and Law Enforcement
victed defendants who were in jail before trial, and hence unable
to demonstrate their reliability to the court, 200, or 59 %, went to
prison. According to the investigators:
this comparison showed that defendants who came to
court from jail received less favorable treatment as to both
the proportion of those convicted and those receiving prison
sentences . . . the contrast between the disposition of jail and
bail cases was so striking that it raises a strong inference
that the handicap of jail status is a major contributing
cause for the difference.
The New York study concluded: "that being in jail operates to
the disadvantage of the defendant at every stage of the proceed-
ing is suggested by statistical comparisons of bail and jail cases
at the grand jury level, in terms of court dispositions and at
sentencing." The study found that in a sample group of 2,000
defendants, the grand jury dismissed about 24 percent of the
cases where the defendant was free on bail but only about 10
percent of the cases where the defendant was in jail. Imprisoned
defendants pleaded guilty about 90 percent of the time, while de-
fendants on bail pleaded guilty about 70 percent of the time. At
trial imprisoned defendants were acquitted about 20 percent of
the time, while defendants who had been free on bail were ac-
quitted about 31 percent of the time. Finally, jailed defendants
who were convicted received suspended sentences in about 13
percent of the cases, whereas bailed defendants who were tried
and convicted were given suspended sentences in about 54 per-
cent of the cases.
Of course, some of the factors, such as a long criminal record
or strong evidence of guilt, that lead to high bail and hence de-
tention, will also lead to a finding of guilty and a prison sentence
instead of probation. But a more recent study concluded that the
47 percent greater likelihood of a defendant's receiving a prison
sentence if he spent the pretrial period in jail could not be ex-
plained by differences in the backgrounds of defendants who
were detained as compared to those who posted bail. 43
Often unbailed defendants who are sentenced by the court to
probation will have lost much of the benefit of that disposition. 44
Yet one of the purposes of having convicted offenders, particu-
larly those who are young or without a prior criminal record,
serve their sentences on probation in the community is to avoid
the degrading, and frequently corrupting, effects of jail. Accord-
ing to an experienced correctional official:
. . . the typical jail has a destructive effect on human char-
acter and makes the rehabilitation of the individual offender
much more difficult . . . the typical jail is dirty and over-
The Bail Problem: Release or Detention Before Trial 437
crowded. The food is deplorable, supervision is scant, and
there are no programs for self-improvement, or even for
wholesome recreation. The typical jail has little to inspire
the prisoner and much to demoralize him. The result is that
he must spend his time there vegetating and degenerating
and worse. . . . Unnecessary jail detention, in my opinion,
is ... a factor accounting for failure among those released
on probation and even among those who are eventually freed
on their current charges. 45
The present system is also expensive to society at large which
pays for pretrial detention. A California legislator has estimated
that in Los Angeles County alone, 60 percent of those arrested
in 1967-68 were detained in jail prior to trial at a cost to local
taxpayers of $20 million. 46 On August 7, 1968, New York Com-
missioner of Corrections, George F. McGrath, wrote to Mayor
John V. Lindsay detailing the unexpected and alarming rate of
increase in the population of the city's detention institutions:
Institutions, which house prisoners awaiting court action,
have a normal male detention capacity of 2,177 persons. In
January, 1968, they accommodated an average of 4,509 pri-
soners. By the end of August they were forced to accom-
modate an average of 6,484 persons a day. 47
As a consequence of this population explosion, already over-
crowded institutions have become even more burdened. The re-
sult has been an impairment of security, strains on personnel and
destruction of prisoner morale.
ALTERNATIVES TO BAIL: RELEASE ON
PERSONAL RECOGNIZANCE
In the past several years various groups have begun to experi-
ment with alternatives to the money bail system. The first such
experimentation, and still perhaps the most widespread, is the
work of the Vera Institute of Justice in New York City with
release on "personal recognizance."
A defendant released on his own recognizance is allowed to
remain free until his trial, conditioned only upon his promise to
appear ; no money bail is required. Vera experiments have shown
that for many defendants such release, removing the necessity
for the posting of collateral or supervision by the court, is both
efficient and humane. Many perhaps most defendants are
trustworthy and have sufficient ties to their families, jobs, and
communities to prevent them from fleeing before their trials.
Release on recognizance obviously is a device that cannot be
used in all cases. Thus the method of determining which de-
438 Report of the Task Force on Law and Law Enforcement
f endants may safely be released on their own trust is crucial. A
judge who must decide who should be released in this manner is
at a great disadvantage. He lacks the time and resources to con-
duct the investigations of defendants' backgrounds essential to
intelligent releasing decisions. The Vera Institute hoped to fill
this gap in the background information available to the judges
and to convince them to adopt alternatives to money bail:
Our early thought was to provide a revolving bail fund
which would be available to indigent defendants. But help-
ing the poor to buy their freedom is no solution ; it merely
perpetuates reliance upon money as the criterion for release.
We wanted to break the pattern and stimulate a more basic
change in bail thinking. The release of greater numbers on
their own recognizance appeared the most potentially val-
uable approach. We decided to test the hypothesis that a
greater number of defendants could be successfully released
in this way if verified information about their stability and
community roots could be presented to the court. This was
the goal of Vera Foundation's first undertaking: The Man-
hattan Bail Project. 48
Thus, Vera's first project, undertaken in conjunction with the
Institute on Judicial Administration at New York University
School of Law, was designed to provide courts with verified in-
formation about a defendant's reliability and his roots in the
community. Law students employed by Vera interviewed re-
cently arrested defendants in the detention pens of the Manhat-
tan Criminal Court just prior to their arraignment. The ques-
tions were aimed at establishing the defendants' community ties
and determining whether they could be trusted to return for trial
if released merely on a promise to return. The defendants' ans-
wers were scored by the Vera personnel according to a weighting
system that gave points for stable residence, family ties, employ-
ment and lack of previous criminal record. The information pro-
vided by the prisoners was checked for accuracy by a member of
the Vera staff. If by Vera standards the defendant was deter-
mined to be a good risk, the information that had been collected
was summarized for the benefit of the arraigning judge, the dis-
trict attorney, and the defendant's lawyer.
Vera found that, with its recommendations and verified infor-
mation to support them, judges were willing to release defendants
on their own recognizance. Of the first 300 cases in which Vera
recommended release, 200 were released on recognizance. Of
those, only two did not appear for trial. This nonappearance
rate was better than analogous statistics of defendants who were
released on money bail.
As an experiment, Vera did not recommend release for some
The Bail Problem: Release or Detention Before Trial 339
of the defendants who met its standards. It did nothing in their
cases except keep track of them. The result was that, while the
court granted pretrial release in 60 percent of the cases recom-
mended by Vera, it did so in only 14 percent of the similar cases
in the control group. In other words, judges were willing to re-
lease four times as many defendants with the aid of verified in-
formation. Of those recommended by Vera for pretrial release,
60 percent were not convicted; only 23 percent of the control
group were not convicted. Of the 40 percent of the recommended
group who were found guilty, one out of six went to jail; in the
control group, of the 77 percent who were convicted, nine out of
ten received jail sentences. 49
Eight years have passed since the inauguration of the Man-
hanttan Bail Project. The coverage of the Project has been
greatly expanded, and the function of providing the courts with
verified information has been taken over by the New York City
Office of Probation. An objective point scale has been refined
and is used to determine the reliability of a large number of de-
fendants. The Project has proved that the characteristics of
persons likely to appear if released can be identified. 50
The Project has been imitated in other cities, using specially
created bail agencies, the police, the sheriff, the welfare depart-
ment, the public defender, the probation department or VISTA
to fill the release advisory role. Although information about other
bail projects is incomplete, nonfinancial release of the reliable
has been a success where it has been tried. 51
Alternatives to money bail other than release on personal
recognizance, with or without conditions, have been tried in other
places. In Illinois, 52 state legislation allows a defendant to post
with the court an amount equal to the premium for a bond. If he
appears for trial, all of the money, except for a small fee to cover
administrative costs, is returned.
This procedure returns the administration of bail to the courts,
where it belongs. It also saves bailed defendants most of the
money previously lost to the bondsmen. It fails, however, to solve
the problem of the poor defendant, who, lacking the necessary
premium, may still go to jail.
In Tulsa, Okla., a scandal involving local bondsmen spurred
the County Bar Association to use the state law allowing judges
to release a defendant to the custody of his attorney. Another
example of the usefulness of third party custodians, even in an
area where release on recognizance is an accepted practice, was
reported in a New York study:
A 19-year-old youth was charged with receiving stolen
property a pair of shoes having been found in his posses-
sion. The boy had recently come to New York from a south-
440 Report of the Task Force on Law and Law Enforcement
ern state. He was employed on Long Island for his first few
weeks. When arrested he was supporting himself as a shoe-
shine boy in the Port Authority Bus Terminal. Although
the charge was a misdemeanor and the youth had no record,
he was not released on his own recognizance. Instead, bail
was set at $50, a nominal amount, but sufficient to result in
dentention for a person with no funds and no friends in the
city. This defendant had not been recommended for ROR
because he had no local references and had been living by
himself in a hotel for transients. However, on review, Vera
was able to recommend pretrial release by arranging, as a
condition in lieu of bail, for a social worker from a poverty
agency to keep in contact with the accused until his next
court appearance. The court accepted this condition and the
youth was released. 53
ALTERNATIVES TO BAIL: SUMMONS
Even more promising than release on recognizance or other
alternatives to bail is the use of the summons. The summons is
commonly used in minor cases to expedite disposition. In the
case of the most frequent example, the parking ticket, a person
is charged with an offense and quickly released without jail, bail,
or even arrest. The defendant simply is notified to appear for
trial at a certain date. The summons can, however, replace ar-
rest and imprisonment in nontraffic cases as well. A summons
may be used by the police on the spot instead of a formal arrest,
or it may be issued by the police desk officer in the stationhouse
shortly after an arrest.
Legislative authority for issuing summonses varies among the
states. Legislation recently enacted in California, Michigan, and
Washington allows the police to issue summonses in lieu of ar-
rests in misdemeanor cases. In Illinois, a statute gives the police
the authority in all cases to issue a "notice to appear" whenever
he has grounds to arrest without a warrant. 54 However, the
police have not always been willing to use their authority. For
example, in California, although a 1967 amendment to the Penal
Code 55 provides that an arresting officer need not take a suspect
to the police station, but may release him immediately once he
has given him a summons, internal police department policies
require approval by the department chief before a police officer
may issue a summons for any nontraffic offense. Thus, the officer
must take the time to travel to headquarters with a suspect, even
though it may be obvious that his release poses no risk to the
community. 56
Recognizing the resistance to giving the releasing power to the
The Bail Problem: Release or Detention Before Trial 441
policeman on the beat, the Vera Institute undertook a project to
replace arrest and bail with a station-house summons. The pur-
pose was to persuade the police to release a defendant after ar-
rest but without jailing him. Beginning in 1964, the Manhattan
Summons Project adapted the Vera technique to the local pre-
cinct police station. When a formal arrest is about to take place
in certain specified minor criminal cases, the Vera staff inter-
views defendants to establish their eligibility for disposition
through a summons. The desk officer at the police station uses
the Vera report in much the same way as the judges in the bail
projects. The procedures take little time and they avoid the penal
aspects of the earlier part of the criminal process. The salutary
effect on defendants was described by an early observer:
During these interviews the mood of the prisoner shifts
from hostile and suspicious to glimmering hope. Perhaps it
is the need to talk to someone perhaps it is the lack of uni-
formed and official brusqueness. . . , 57
The attitude of the New York City police towards the sum-
mons project has been not merely cooperative, but enthusiastic.
Most of the Vera recommendations for release have been ac-
cepted by the desk officers involved. A speech by the Police De-
partment's Deputy Commissioner, Leonard Reisman, pointed out
that even on the modest scale at which the experiment was begun,
the police department was saving thousands of hours of man-
power.
On July 1, 1967, the Manhattan Summons Project was ex-
panded to cover the entire city of New York. During the first
year of citywide operation, a total of 48,159 arrest cases eligible
for summons process were brought before desk officers through-
out the city. Of these, 26,733, or 55 percent, of the defendants
were not considered for summonses because they were intoxi-
cated, currently addicted to narcotics, or were derelicts. Thus,
21,426, or 45 percent, were interviewed. Of course, 14,232, or
two out of three of the eligible defendants, received summonses
and were not detained and taken to court by the arresting officer.
Of the one-third who failed to qualify, 22 percent refused to be
interviewed and 12 percent failed to meet the qualifications for
a summons. 58
More than 95 percent of those who received summonses under
this program appeared in court when scheduled. Since the in-
ception of the program, the "jump rate" was lowered for the
5.3 percent average of the first 6 months to the approximately
3.9 percent average for the last 6 months. Efforts to contact
those defendants who failed to appear in court on the proscribed
date traced many to local hospitals and other criminal institu-
tions, where confinement made it impossible to appear in court.
442 Report of the Task Force on Law and Law Enforcement
Some "jumpers" had been drafted or volunteered for the Armed
Forces between the date of their arrest and the return of the
summons. When reminded of their obligation to appear, many of
the defendants appeared in court voluntarily at a subsequent
date. 59
The increased use of the summons process in New York has
resulted in a substantial savings of police man-hours. Taking
into account custodial personnel, transportation, arraignment,
and unnecessary court appearances, the Police Department esti-
mates that it saves approximately five hours each time a sum-
mons is issued. Since 60 summonses are issued on an average
day, an additional 300 hours of police patrol is made possible
each day. The return of patrolmen to the street after a summons
is issued reduces the opportunities for crime. 60
An example of the benefits to police-community relations that
can be achieved through use of the summons occurred in Decem-
ber 1967. Mothers who had been protesting the transportation of
their children to school districts outside their neighborhoods
were arrested and charged with criminal trespass. They were
escorted to the stationhouse with the children and released on
summonses. The result: "This action not only enabled the de-
fendants to care for their families, but also lessened the aliena-
tion between the police and the public normally caused by ar-
rests made under these circumstances." 61 This enlightened treat-
ment of demonstrators stands in stark contrast to the jailing of
civil rights demonstrators in the Deep South.
THE BAIL REFORM ACT OF 1966: ITS PROMISE
In 1966, in response to a growing national interst in bail re-
form, Congress enacted the Bail Reform Act 62 and created the
District of Columbia Bail Agency to provide the courts with facts
and recommendations about pretrial release. 63 The act the first
major overhaul of federal bail law since 1789 establishes two
primary principles: that an accused shall be released pending
trial unless good reasons exist why he will not return to stand
trial; that a person's ability to post money bond shall be ir-
relevant to a pretrial release decision. 64 The new law reverses
the traditional assumption governing pretrial release. 65 Instead
of calling for a bail hearing aimed exclusively at assuring the
defendant's future presence at trial, the Act provides for a pro-
ceeding designed principally to assure his release. A defendant
may be released on his own recognizance or on the execution of an
unsecured appearance bond. 66 A judge who determines that such
a release will not reasonably assure the defendant's appearance
has the authority to impose any one or more conditions (most of
The Bail Problem: Release or Detention Before Trial 443
them nonfinancial) which are calculated to deter flight. 67 The
defendant's appearance at trial not his possible danger to the
community is the only consideration that may be taken into
account.
A defendant who continues to be detained twenty-four hours
after the release hearing as a result of his inability to meet the
conditions of release may have the conditions reviewed by the
judicial officer who imposed them. Unless the conditions are
changed and the defendant released, the judge must state in writ-
ing his reasons for imposing these particular conditions. 68 The
statute provides for prompt appeal of release conditions. 69
It is more difficult to secure release in a capital case or after
conviction pending an appeal. The rationale for changing the
presumption of release in these cases is that a defendant who is
charged with an offense punishable by death, or who already has
been convicted, is more likely to flee. Hence a judge is author-
ized to order detention in these situations where he has reason to
believe that "no one or more conditions of release will reasonably
assure that the person will not flee or pose a danger to any other
person or to the community." 70
In the Bail Reform Act Congress recognized that it is an
anachronism to make freedom pending trial depend on a de-
fendant's ability to pay. 71 As the Senate Judiciary Committee
pointed out: "Respect for law and order is diminished when the
attainment of pretrial liberty depends solely upon the financial
status of an accused." 72
The release rates of the District Court for the District of
Columbia are said to have risen under the Act to about 75 per-
cent of all defendants. 73 The beneficial effects of the improved
releasing procedures have been assessed by the Director of the
National Legal Aid and Defender Association's National De-
fender Project:
It has allowed families to remain self-sufficient during
the long wait for trial. Released defendants have been able
to aid their attorneys in preparing a defense. Often the re-
habilitation of guilty defendants has begun during pretrial
release and has continued under terms of probation granted
because of the progress exhibited during pretrial release.
Truly poor families have been saved the onerous burden of
paying an unreturnable money premium to a professional
surety. We cannot forget the innocent defendant without
funds who did not spend several months in jail awaiting
trial . . . Improved bail procedures have also demonstrated
a substantial saving to the Government. 74
Since passage of the Bail Reform Act, there has been a re-
evaiuation of bail legislation in many states, and a heightened
444 Report of the Task Force on Law and Law Enforcement
interest in developing nonfinancial alternatives to money bail. 75
There is still a great need, however, for bail reform at the state
and local levels where the great majority of defendants are
tried. Investigations by the Vera Institute of Justice suggest
that current bail practices are all too similar to those of a decade
ago. While it is true that reform efforts have caused many people
to be released without having to post money bail, it is also true
that rates of pretrial detention remain high, that lengthy deten-
tion is still common, and that money bail is still extensively used,
and, in fact, remains the most common form of release condition.
Prosecutors and judges continue to recommend and set bail in
dollar amounts with little or no information about the defend-
ant, with no articulation of reasons why these amounts are
required, and with either a conscious intent to detain, or an
apparent lack of concern as to whether detention will be the
result of requiring money bail. 76
THE BAIL REFORM ACT OF 1966: ITS PROBLEMS
In the District of Columbia, where the federal courts have a
unique criminal jurisdiction comparable to that of state courts
in other areas, observers agree that administrative problems
have prevented the Bail Reform Act from accomplishing fully
the purposes for which it was designed. 77 The primary problems
have involved inadequate staffing of the District of Columbia
Bail Agency, incomplete acceptance by the judiciary of the Act's
provision of nonfinancial conditions of release, and long delays
before trial.
The shortage of Bail Agency manpower has meant that judges
are provided with insufficient data on defendants at the time of
release. A single investigation now serves as the basis for the
initial releasing decision, as well as for the 24-hour review pro-
vided by the Act. Judges normally refuse to release on their own
recognizance or on nonfinancial conditions defendants about
whom they lack sufficient information. According to one General
Sessions judge, "Unless and until the Bail Agency is staffed and
equipped to provide the maximum amount of data to the Court,
there will always be a substantial number of individuals initially
detained who would have been eligible for release if a follow-up
had taken place." 78
Perhaps because of the lack of enforcement machinery, judges
have also not made use of the wide variety of conditions of re-
lease authorized by the Bail Act. According to the Director of
the District of Columbia Bail Agency,
Administration of the Bail Reform Act continues to be
hampered by a lack of understanding of the act and failure
The Bail Problem: Release or Detention Before Trial 445
to utilize prescriptive measures contained therein. It must
be remembered that the Bail Reform Act of 1966 did not
restrict judicial discretion. On the contrary, the Act en-
larged the possibilities of conditions of release and enumer-
ated the priorities of release which were allowed for more
rational consideration of the accused's total situation. Rule
46 of the Federal Rules of Criminal Procedures stated that
persons charged with noncapital cases had to be released.
The Bail Reform Act gave Judges the tool to release intel-
ligently. 79
Despite the range of nonfinancial conditions allowable under
the Bail Reform Act, many judges continue to impose money
bonds routinely, or they violate the Act by refusing to release at
all. 80 A Judicial Council committee appointed to study the opera-
tion of the Bail Reform Act in the District of Columbia has rec-
ommended conditions which might be imposed in appropriate
cases: (1) weekly personal check-ins to the Bail Agency or an-
other designated office in the community; (2) a duty to carry
an Agency-issued identification card at all times and to notify the
Agency of each change of address or employment, coupled with
spot checks by the Agency on residence and employment; (3) a
duty of youthful defendants to continue residence with their
parents, coupled with Agency spot checks; (4) a duty to request
court (or Agency) permission to leave the metropolitan area for
specified time periods with a forwarding address, coupled with
Agency spot checks; (5) a duty of narcotics addicts to check in
periodically for examination at an appropriate hospital, coupled
with Agency monitoring of check-in lists ; (6) and restrictions to
prohibit addicts from frequenting specified locations where nar-
cotics users congregate.. 81
The Bail Agency has, however, lacked the resources to enforce
conditions of release. In addition, enforcement by prosecuting
and judicial agencies has been lacking. The Director of the Bail
Agency has pointed out that of the 2,118 indictments returned by
the grand jury in 1968, only three were for bail jumping:
In an atmopshere of concern for the public welfare it is
astonishing to discover less than a handful of citations for
contempt for failure to comply with release conditions by
any District of Columbia judge. It is even more ironic to
note that in few instances has application been made to
amend or revoke original conditions or release where the
United States attorney has received information which
changes the picture of a defendant's total situation. 82
In addition to effective supervision of releases, observers have
urged that the time between arrest and trial be shortened dras-
446 Report of the Task Force on Law and Law Enforcement
tically. 83 Hastening criminal trials would achieve not only the
humane goal of reducing the time which some defendants must
spend in jail before trial, but would also reduce the time in which
released defendants have the opportunity for committing further
crimes. Although figures on crimes committed by defendants
awaiting trial are in great dispute, the President's Commission
on Crime in the District of Columbia found that 68 percent of
crime on bail was committed more than 30 days after initial
release. 84 Moreover, the deterrent effect of the criminal laws
would be enhanced by bringing the trial closer to the criminal
act and making the sentence seem more the response of society to
the defendant's criminal conduct and less the result of a long,
drawn-out game. 85
Beyond the administrative problems, which virtually everyone
agrees require some sort of action, some critics have concluded
that there are basic flaws in the Bail Reform Act itself. Although
no one has advocated a return to the old money bail system, 86
critics have recommended the Act be amended to permit a court
to consider a defendant's danger to the community as well as the
likelihood of his appearance at trial in fixing conditions for pre-
trial release. 87 Others have urged an amendment that would per-
mit "preventive detention" of defendants considered to pose a
danger to the community. 88
A General Sessions judge has cited a problem of releasing
narcotic addicts where the only allowable consideration for im-
posing conditions is the likelihood of flight:
Many addicts come into our Court on petit larceny
charges. They will tell you they have a $40-$50 per day habit
supported solely by stealing. To release them is to guarantee
theft in the amount of $250 or more a week. But, they usu-
ally return to court on the appointed date. An addict with a
bad habit cannot leave his source, so flight is almost non-
existent. On the date of trial the pusher will bring them in
or they are quickly found in their neighborhood.
Since they are a good risk on personal bond, the Bail Act
dictates that they be released. Yet they pose a terrible eco-
nomic danger to the community in terms of future burglary,
robbery, or tampering offenses. 89
Examples of repeated crimes committed by defendants re-
leased before trial have been widely reported in the press. One
recent report involves a defendant arrested and released six
times in a 10-month period for street muggings, drug store hold-
ups, and a liquor store assault. After the first charge, the de-
fendant was released on recognizance; in each subsequent case
The Bail Problem: Release or Detention Before Trial 447
he was released on money bond. The U.S. Attorney's office never
asked the judges who set the bonds to revoke them. 90
Little agreement prevails, however, on the percent of released
defendants who actually commit crimes while awaiting trial.
A study by the District of Columbia Police Department of persons
indicted for robbery and released on bail between July 1, 1966,
and June 30, 1967 showed that of 130 persons so released, 45,
or 34.6 percent, were indicted for at least one additional felony
while on bail. But these findings, as well as the methodology of
the study that produced them have been criticized by a Justice
Department release. 91 Little certainty remains about the actual
incidence of crime on bail.
Despite such uncertainties about the real risk of crime com-
mitted by persons on bail, neither the Bail Reform Act nor
the experimental bail projects which preceded it were designed
to treat the problem of pretrial release as a whole. The bail
reform movement of the past decade has addressed itself pri-
marily to the problem of the unnecessary detention of the reliable
defendant who is too poor to post money bail, 92 but it has pro-
vided little guidance for dealing with the defendant who is not
obviously reliable both the person considered to pose a high
risk of flight and the person thought likely to commit crime if
released :
In our effort to maximize release of the person likely
neither to flee nor to commit crime, we have neglected to
deal adequately with those whom it is believed are likely
to do so. 93
As a result, we have a dual system, judges are told to reject the
traditional approach to bail for defendants shown to be reliable,
but to continue to use money bail for those who are not. The
Bail Reform Act condemns money bail and gives it low priority
among the possible conditions of release ; but it does not prevent
its use as a detention device. If Congress really had intended
money bail only as a condition of release not as a technique
of detention it would have limited its use to cases in which
the defendant was able to post the required amount:
The failure of Congress to so provide has not been lost
upon those charged with the administration of the Act. They
interpret the Act and, I believe, with some jutsification
as an imaginative and much improved way to handle the
reliable defendant, but as largely irrelevant in dealing with
the risky. And, because the Act gives little guidance as to
how to determine risk, it leaves judges and prosecutors to
their traditional devices. 94
448 Report of the Task Force on Law and Law Enforcement
THE PROBLEM OF DANGEROUSNESS: SOME PROPOSED
SOLUTIONS
The current bail debate revolves largely about the special prob-
lems presented by dangerous or unreliable defendants.
The Judicial Council Committee, by a majority of one vote, has
recommended that laws applicable to bail in the District of Colum-
bia be amended to allow courts
to consider dangerousness to the community in setting non-
financial conditions of release for persons who, based on the
available information, pose a threat of repeated criminal
conduct while on bail. The court would state for the record
(and possible appeal) the information on which the find-
ings of potential dangerousness is based. 95
In the opinion of Judge Harold H. Greene of the District of
Columbia Court of General Sessions, it is unrealistic and unwise
to exclude the criterion of danger to the community from consid-
eration in determining conditions of release. The other General
Sessions judges agree. They have urged that courts be permitted
to consider not only the possibility of flight by the accused, but
also the potential danger he presents to the public, in determin-
ing the conditions of his release. 96
To illustrate the possibilities for release conditions that would
take into account potential danger to the community, Judge
Greene has suggested that the following conditions might be
imposed in the case of a robbery suspect:
Residence at a specified place, preferably with relatives,
and a requirement that the defendant not be allowed to
change his address without prior permission from the Bail
Agency. Employment at a specified place, which again the
defendant would not be allowed to change without prior
clearance. Prohibition on being absent from the place of
residence or the place of employment for a period of more
than one or two hours at a time without prior authoriza-
tion from the Bail Agency. A nighttime curfew applicable
to the defendant. Prohibition on association with certain
persons or certain groups of persons. Periodic reporting by
the defendant to the Bail Agency and to the Probation
Department of the court. Deduction of a certain percentage
of defendant's earnings and deposit of that sum with the
Bail Agency or the Criminal Clerk's Office of the court as
security for his appearance. 97
Chief Judge Edward H. Curran of the U.S. District Court
for the District of Columbia, has stated that in setting the terms
of release, the protection of the public from dangerous criminals
should be given a weight equal to consideration of the risk of
The Bail Problem: Release or Detention Before Trial 449
flight. Judge Curran also has recommended that the Bail Act
be amended to include a provision for automatic revocation of
release pending trial when a defendant violates any of the con-
ditions of release. 98 The Judicial Committee also would include
such a condition."
The Judicial Committee also would authorize revocation of
the release of a defendant indicted for a felony which allegedly
was committed while he was on bail. 100 The Committee sug-
gested, however, that before deciding whether to enter an order
revoking release, the court should consider whether any addi-
tional conditions would reasonably assure the safety of the com-
munity and the appearance of the defendant. If a defendant
should in such a case be detained, the Committee was divided
on the issue of whether a defendant who is not tried within
sixty days should be released automatically unless he caused
the delay, or whether release after 60 days should not be auto-
matic, particularly in the cases of defendants who were re-
indicted while on bail. 101
According to a majority of the members of the Judicial
Council Committee, 'There are compelling reasons for enact-
ment of a statute which sanctions preventive detention in
some cases." 102 In the majority's view, courts should be given
discretion to deny bail.
(a) in a case in which a crime of violence was allegedly
committed prior to indictment, after indictment but prior
to trial, or after trial but prior to completion of the appellate
process; (b) in the event that a crime of violence is com-
mitted either while the defendant is on probation or parole,
or within a reasonable time following the completion of a
sentence; (c) where the court finds that a defendant is
charged with certain high risk crimes of violence and will
pose a danger to the community if released; (d) when a de-
fendant is a narcotic addict with a habit so costly that it can
only be supported by crime ; and (e) where individuals whose
alleged crimes, when committed in the context of a civil
disorder, pose a grave danger to the community. 103
The minority of the Committee opposed enactment of any
legislation providing for preventive detention because, in its
view, the present ability to predict dangerousness is grossly
inadequate. Without an effective system of prediction, many
good risks might be detained needlessly. According to the
minority, "Congress' first duty is to provide the District of
Columbia with the resources upon which a sound bail system
and criminal justice process can be built. . . . The right to pretrial
release should not be the sacrificial lamb of an inadequate system
of justice." 104
450 Report of the Task Force on Law and Law Enforcement
The practice of pretrial, or "preventive" detention is common
in some form in most foreign countries, including England. 105
A distinction should be made at the outset, however, between
the police and the prosecuting power to achieve prolonged pre-
ventive detention that exists in some civil law countries, and
the judicial power currently existing in this country to order
pretrial detention in capital cases. It is only this judicial power
that people in this country have advocated extending to some
classes of noncapital cases. 106
At present, statutory authorization of pretrial detention in
this country is extremely rare. In a great majority of states,
present constitutional and statutory provisions grant an absolute
right to bail, at least in noncapital cases. 107 Yet pretrial detention
in a disguised form is commonly achieved by judges setting
money bail at an unattainably high amount. The Proposed New
York Criminal Procedure Law contained a provision (since
abandoned) which would have made New York the only state to
allow courts openly to deny release to criminal defendants they
consider likely to be a danger to society or themselves if they
are allowed to remain at liberty. In determining the question
of release, the statute directed courts to consider: (1) the avail-
able information relating to the defendant's character, reputa-
tion, habits and mental condition; (2) the nature of the offense
with which he is charged; and (3) his previous criminal record.
Where the defendant has been convicted and is awaiting appeal,
the likelihood of the ultimate reversal of the judgment also is
relevant. 108
The New York Commission argued that the consideration
of a defendant's possible danger to society, although overtly
recognized neither legislatively nor judicially, actually underlies
many refusals of defendants' applications for release:
There is little doubt that the average judge will, regardless
of the reasons given by him, deny bail to a defendant charged
with forcible rape and having an unsavory record of sex
crimes, no matter how certain he may be that the defendant
will appear in court when required ; nor is there any doubt
that such practice . . . has the approval of the general pub-
lic ... Upon the premise that in many instances preventive
detention is in fact necessary for public protection and will
inevitably be practiced even though not specifically author-
ized, the proposal realistically and implicitly recognizes dan-
ger to the community as a valid consideration in the deter-
mination of any bail application. 109
The present Administration has also suggested a law for the
District of Columbia "whereby dangerous hardcore recidivists
The Bail Problem: Release or Detention Before Trial 451
could be held in temporary pretrial detention when they have
been charged with crime and when their continued pretrial release
presents a continued danger to the community." 110 Moreover,
several Senators and Congressmen have introduced bills relating
to pretrial detention in the 91st Congress. 111
A number of compelling arguments support legislation that
would give judges the power to detain suspects before their trials.
In the first place, as we have seen, the current judicial practice
of detaining defendants by manipulating the requirements for
money bail is widespread. 112 According to one judge :
An unreasonable law has the ultimate effect of forcing
those who administer it to ignore it, calloused of the conse-
quences or else to make extreme rationalizations in circum-
venting it ; this applies to judges. You cannot expect judges
to follow the letter of a law that requires them to turn many
dangerous criminals loose day after day. 113
If the problem of a defendant's dangerousness to the community
were considered openly, and if any pretrial detention were
coupled with strict procedural safeguards, including the right
to appellate review, it is arguable that far fewer abuses would
exist than do under current practices. 114
In addition, as the President's Commission on Law Enforce-
ment and the Administration of Justice pointed out : "The present
invisibility of the issue of dangerousness, by preventing judicial
review of specific cases, undoubtedly impedes the development of
standards and data concerning dangerousness." 115 Thus, much
can be said for bringing the existing practices regarding pre-
trial detention out into the open where they can be evalutated
on their own merits, and where they can be effectively regu-
lated. 116
The possibility of replacing the money bail system entirely
by using narrowly drawn procedures to detain some few de-
fendants before trial has not been given sufficient attention in
the legislative proposals for pretrial detention. Although some
of the legislation that has been suggested would limit courts
to nonfinancial conditions of release on a finding of dangerous-
ness, none of it does away with the courts' power to set high
money bail ostensibly as a deterrent to flight. The President's
Crime Commission stated, however, that if a satisfactory solution
could be found to the problem of the relatively small percentage
of defendants who present a significant risk of flight or criminal
conduct before trial, it would be prepared to recommend that
money bail to totally disregarded. 117 As shown, the benefits to
the administration of justice of abolishing money bail, with all
its attendant evils, would be enormous. On the other hand, the
adoption of a system that gave the power of outright detention
452 Report of the Task Force on Law and Law Enforcement
before trial without disturbing the judicial power to set high
money bail would tend to compound the evils of the present
system. It would increase the power of judges to detain without
giving any assurance that judges had, in all cases, rational bases
for their decisons. 118
Although detention without conviction of crime has precedents
in dealing with the mentally ill and juveniles thought likely to
become criminals, 119 the adoption of any system of pretrial
detention is beset with difficulties, however, both theoretical and
practical. On the theoretical side, many have argued that pretrial
detention is precluded by the presumption of innocence, by the
"excessive bail" clause of the Eighth Amendment, and by the
"due process" clause of the Fifth and Fourteenth Amendments.
The presumption of innocence, expressly mentioned in the
constitution or code of most states, has generally been considered
as a rule of evidence designed to secure a fair trial by requiring
the prosecution to prove its case beyond a reasonable doubt. If
the presumption of innocence precludes any predictions of future
wrongful conduct before a defendant has been convicted, it bars
both pretrial detention and conditions of release. It is doubtful,
however, that any court would adopt such an interpretation. 120
As one author writes :
The presumption of innocence . . . does not mean that those
w r ho discharge executive or administrative functions prior
to trial should be bound to act as though the suspect had
behaved, and would pending trial behave, as a law-abiding
citizen. This would be to contradict the experience of man-
kind over the ages. 121
The Eighth Amendment objections to pretrial detention are
more difficult to refute and the few judicial decisions on the
subject have not decisively settled the issue. 122 According to
Professor Caleb Footers interpretation of the Eighth Amend-
ment, 123 the historical evidence which he marshals for a right
to bail is extremely persuasive, but it is weakened by two con-
siderations. First, although the Eighth Amendment makes no
distinction between capital and noncapital offenses, the excep-
tion of capital crimes from the guarantee to bail of the Judiciary
Act of 1789 and its successors has gone unchallenged. Second,
although Professor Foote's analysis would seem to require an
absolute right to bail at least in all noncapital cases, he is none-
theless willing to grant an exception for cases where the prose-
cution can show that release would create a great risk of violent
injury to a specific victim, complainant, or witness. 124
The argument that pretrial detention deprives a defendant
of his liberty without due process of law was well stated by
The Bail Problem: Release or Detention Before Trial 453
Senator Ervin in a recent article in the George Washington Law
Review :
Even, when apparently convincing evidence exists that a
man has committed a crime, we would be shocked at the
suggestion that he might be convicted and imprisoned with-
out being accorded the right to present his defense in a trial
governed by the processes of law. It is even more outrageous
that through a perversion of bail procedures, such punish-
ment might be imposed by a judge, or in the case of most
federal districts, a United States Commissioner, in the
absence even of trial or jury verdict and on the basis of a
crime not yet committed. Such a power is repugnant to
constitutional principles. No claim of public safety can jus-
tify such a flagrant negation of due process of law. 125
The American Bar Association's Advisory Committee on Pretrial
Proceedings on the other hand, believes that the due process
argument cannot be made without reference to a particular form
of pretrial detention: "If other constitutional doubts were re-
solved, it seems likely that a limited provision carefully hedged
with adequate procedural safeguards would survive attack. 126
It thus appears that pretrial detention proposals will probably
escape constitutional objection if the defendants detained do
with some assurance actually pose a threat to the safety of so-
ciety. But if judges are explicitly given the power to lock up
defendants based on a prediction of possible dangerousness, will
they know which defendants to detain ? Upon this very practical
problem, the answer to the theoretical question of legality will
probably rest.
One judge has testified that he is confident judges can make
such predictions:
Documented statistics of recidivism coupled with a strong
showning of present misconduct affords a judge sufficient
criteria to enable him to predict with reasonable certainty
whether an individual poses a danger to the community. 127
Another judge, however, a member of the same court, strongly
disagrees :
When the District of Columbia Crime Commission pre-
pared its report in 1966, it conducted, among other things,
a survey of persons charged with committing a new crime
while on bail for another offense. This survey showed that
of 2,776 persons who came before the United States District
Court for the District of Columbia during the survey period,
207 (or 7.5 percent) were charged with committing a new
crime while on bail, 124 of them (or 4.5 percent) with a
454 Report of the Task Force on Law and Law Enforcement
crime of actual or potential violence. It is to be noted that
these figures and percentages refer only to charges, not to
convictions. The conviction rate in the District Court is
approximately 75 percent, so that in actuality only about 3
percent of all those released on bail during the survey period
were found to have committed a violent crime while out on
bail.
Can anyone really believe that a judge could predict, with
a degree of accuracy, which one out of every 33 defendants
who come before him is likely to commit another crime while
on bail? If such predictability is impossible as I think it
is then the community can be safe from crimes of violence
by defendants during the pre-trial period only by preven-
tively detaining the 32 who predictably will not commit such
an offense, in order to be sure to keep off the streets the one
defendant who will. I think that, even with the appalling
crime situation with which we are confronted, this is too
high a price to pay. 128
Unquestionably, some individual cases at least in retrospect,
clearly suggest that a defendant never should have been re-
leased. 129 The question is whether such cases can be identified in
advance, with enough precision to allow the dangerous to be de-
tained without holding a large number of other defendants who
pose little threat to the safety of the community.
Prof. Alan Dershowitz has pointed out the heavy odds that
exist against accurate prediction of violent crimes by suspects
released pending trial :
[A] 11 the experience with predicting violent conduct sug-
gests that in order to spot a significant proportion of future
violent criminals, we would have to reverse the traditional
maxim of the criminal law and adopt a philosophy that it is
"better to confine ten people who would not commit predicted
crimes, than to release one who would."
It should not be surprising to learn that predictions of the
kind relied upon by the proponents of preventive detention
are likely to be unreliable. Predictions of human conduct
are difficult to make, for man is a complex entity and the
world he inhabits is full of unexpected occurrences. Predic-
tions of rare human events are even more difficult. And pre-
dictions of rare events occurring within a short span of time
are the most difficult of all. Acts of violence by persons re-
leased while awaiting trial are relatively rare events (though
more frequent among certain categories of suspects), and the
relevant time span is short. Accordingly, the kind of predic-
tions under consideration begin with heavy odds against
their accuracy. A predictor is likely to be able to spot a large
The Bail Problem: Release or Detention Before Trial 455
number of persons who would actually commit acts of vio-
lence only if he is also willing to imprison a very much larger
number of defendants who would not, in fact, engage in vio-
lence if released. 130
The President's Commission on Crime in the District of Co-
lumbia stated that defendants who are highly probable to be a
grave menace to the physical safety of the public can be identi-
fied on the basis of their "prior criminal record. . . . prior pattern
of vicious antisocial behavior, and/or the nature of the offense
. . . charged." 131 According to the Commission's figures, however,
only 7.5 percent of the defendants released in one year were later
alleged to have committed offenses while awaiting trial. And, of
the defendants studied, only 4.5 percent were charged with crimes
of actual or potential violence. 132 One of the Commissioners ana-
lyzed the backgrounds of the 207 offenders who had committed
additional crimes on bail to see if they could have been identified
beforehand and detained. The records of the repeaters did not
appear to differ from those of the other defendants in any sig-
nificant way. In fact, in several categories of offenses, the past
records of the repeaters were better than those of other de-
fendants. 133
Efforts to predict violence are not unique to the pretrial period.
Experience with prediction in the civil commitment of the men-
tally ill, in the sentencing of convicted offenders, in the patroling
of prisoners from institutions and returning parole violators to
prison, 134 indicates very little, if any, success.
First, professionals with year of experience in observing people
and in basing predictions of future conduct on their observations
(a procedure that has been called the "clinical" method of pre-
diction) vary greatly from ane another in their predictions re-
garding any one subject. 135 Second, the experts show no greater
ability to predict behavior than people who lack such experience.
One recent discussion concluded, after surveying studies of the
validity of psychiatric predictions, that psychiatrists are no more
able than anyone else to predict criminal behavior. 136 Psychia-
trists were found consistently to have overpredicted the occur-
rence of violence. One ostensible reason for the overprediction
relates to the issue of pretrial detention :
The psychiatrist almost never learns about his erroneous
predictions of violence for predicted assailants are gen-
erally incarcerated and have little opportunity to prove or
disprove the prediction; but he always learns about his er-
roneous predictions of nonviolence often from newspaper
headlines announcing the crime. This higher visibility of
erroneous predictions of nonviolence, inclines him, whether
consciously or unconsciously, to overpredict rather than un-
456 Report of the Task Force on Law and Law Enforcement
derpredict violent behavior. This phenomenon will, I submit,
be equally true of judicial decisions to confine predicted vio-
lence-doers pending trial. 137
An associate superintendent of a California prison, with years
of correctional experience, recently was asked to interview 283
inmates just before their release on parole and predict their
success on parole. Neither from the interviews alone, nor from
the interviews augmented by psychiatric case histories of the men
interviewed, could the superintendent make predictions that had
any significant reationship to the actual outcome of the cases. 138
In an experiment that attempted to determine whether the
training and experience of parole officers gave them a special
competence for prediction, the same case histories of parolees
from a state prison were given to ten experienced parole officers
and ten laymen with no particular education or experience in
working with offenders. The participants were asked to predict
the probable success on parole of each subject. The two types of
participants turned out not to differ significantly in their predic-
tive efficiency. The two groups combined, correctly identified
slightly more than half of the potential parole violators, but less
than half of the nonviolators. (The results for nonviolators would
have been better had the predictors flipped a coin.) No relation-
ship existed between a participant's confidence in a particular
prediction and the accuracy of that prediction. 139 In both these
studies far more information about the offenders, all of whom
had been through the state's prison system, was available than is
collected before trial.
More accurate than these attempts to predict criminal behavior
through the clinical method, 140 are the procedures that have been
developed of assigning offenders to risk categories based on char-
acteristics previously found to be associated with continued crim-
inal behavior. 141 Attempts to use such prediction tables date from
the 1920's. 142 Yet only recently have improved measures of crimi-
nal behavior begun to receive careful attention. 143
Despite the painstaking studies made recently, all currently
available prediction methods have a relatively low ability to pre-
dict criminal behavior. The problems of prediction are com-
pounded by the small incidence of violent crimes in the population
(the "base rate" problem) and the difficulty of applying results
from one geographical area to another (the "cross-validation"
problem. 144 The success of release on recognizance in the past,
both in terms of releasees' appearance for trial and in terms of
the relatively small proportion charged with additional crimes
on bail, complicates the predictive task even further, since it
asks to predict rare events. 145
The Bail Problem: Release or Detention Before Trial 457
Even if statistical prediction tables were perfected, it is doubt-
ful that judges deciding whether to release defendants before
trial would make full use of them. Parole boards currently have
such tables available to them, together with evidence that the
tables are more reliable indicators of success on parole than the
board members' own intuitions. 146 Yet a 1962 survey showed
that, of 48 states responding to a questionnaire, parole boards
in 44 never made use of parole prediction tables for any pur-
pose. 147 Parole boards seem to believe that more justice is done
when an individual gets a "personalized" prediction than when
he is assigned to a risk category on the basis of characteristics
over which he has no control. 148
In the face of the elemental state of knowledge regarding our
ability to predict violent behavior, it has been urged that before
enacting a statute that would authorize pretrial detention, some
brief empirical studies be undertaken. Their purpose would be
to discover whether it is possible to identify a high percentage
of defendants who will commit violent crimes if they are released
before their trials, without including an inordinate number of
defendants who will not.
Professor Dershowitz has suggested several possibilities for
such studies. 149 In one, judges would be asked to apply to the
defendants who come before them the criteria contained in one
or more of the statutes that have been proposed and to record
their predictions of which defendants will engage in violent
crimes. Then all (or perhaps half) would be released and the
judicial predictions compared with actual experience. Perhaps
more acceptable to the public would be a test in which judges
were given the past records of defendants and asked to "predict"
which of them would commit crimes pending trial. Immediate
comparison with available (although not always accurate) rec-
ords of offenses by bailed defendants would then be possible.
Finally, a study aimed at developing more refined criteria
than those contained in any of the suggested legislation would
be desirable. A large number of records of persons who have
been charged with certain serious felonies and released under
provisions of the Bail Reform Act could be analyzed. The pur-
pose of the analyses would be to discover whether there are any
characteristics, such as drug addiction, with a habit so costly
that appears as if it can only be supported by crime, that dis-
tinguish the defendants who probably committed crimes on bail
from those who did not. The tentative list of predictive criteria
that emerges from the analysis should then be applied retro-
spectively to the original records and, if possible, to another
collection of records of offenders similarly situated to see
whether any of the criteria has predictive validity.
458 Report of the Task Force on Law and Law Enforcement
CONCLUSION
Any system of pretrial detention of accused persons includ-
ing, especially, current money bail practices poses dangers to
cherished individual rights. Mitigation of these dangers requires
that the Government reduce the inequities based on wealth wher-
ever possible and insure that a defendant's detention does not
preclude a fair trial. Each proceeding on the issue of pretrial
detention should involve a full adversary hearing. Moreover,
defendants without adequate resources should be supplied with
counsel and investigative assistance. 150 These proceedings, re-
quiring most of the safeguards of criminal trials, necessarily
increase the strains on an already overburdened judicial sys-
tem. 151 Detained defendants should normally be confined in
quarters separate from those of convicted criminals, should be
tried within a short time, should be provided with expanded
social services for their families, if any, while they are confined,
and should be assisted in reestablishing themselves in the com-
munity if they are in fact acquitted at trial. 152
Any system of pretrial detention meeting these criteria will
thus impose heavy expenses in terms of both facilities and pro-
fessional services, as well as posing dangers to individual rights.
Accordingly, as the House of Delegates of the American Bar As-
sociation has also concluded, 153 alternatives to expanded formal
use of pretrial detention and to present informal high bail prac-
tices should be more thoroughly explored before any such sys-
tem is adopted. Pretrial detention should not be permitted to
serve as a substitute for an adequately staffed and efficient sys-
tem of justice. A period should be set aside for genuine experi-
mentation with effective means, short of detention, for protecting
the community from the dangerous defendant, particularly
greatly reduced pretrial periods and increased supervison of
released defendants. At the same time efforts should be intensi-
fied to develop techniques for more accurately identifying those
few defendants who are so dangerous to the community that
they may not be released before trial, even for a brief period.
When and if such techniques are developed, limited use of pre-
trial detention may then be appropriate.
The government should protect citizens from acts of violence,
but the public is not protected when defendants are detained or
released almost at random according to either the amount of
bail they can raise or the unsupported intuitions of the judiciary.
The rights of defendants and the safety of the public deserve a
better system.
The Bail Problem: Release or Detention Before Trial 459
APPENDIX:
PROPOSED LEGISLATION
(Based on an Analysis by Patricia M. Wald)
1. S. 288 (Senator Byrd) : This bill amends 18 U.S.C. 3146 to add
dangerousness to other persons or the community as a criterion for
setting release conditions.
2. S. 289 (Senator Byrd) : This bill, a companion to S. 288, amends 18
U.S.C. to allow detention of those charged with any crime of violence
who were previously convicted by a federal or state court of a crime
of violence. (Crime of violence means voluntary manslaughter, murder,
rape, mayhem, kidnapping, robbery, burglary, housebreaking, ex-
tortion with threat of violence, assault with a deadly weapon, assault
with intent to commit felony, felonious arson or any attempt to commit
the foregoing.)
3. S. 556 (Senator Tydings) : This bill provides for a hearing, initiated
by the Government, to see if the released person "will seek to intimi-
date witnesses," "unlawfully interfere with the administration of
justice, cause the death of or inflict serious bodily harm upon another,
or participate in the planning or commission of" armed robbery or
other offense covered by 18. U.S.C., Ch. 103 (robbery and burglary).
If there is "clear and convincing evidence" that he will, conditions may
be imposed to forestall such a contingency. If no conditions are deemed
satisfactory, he can be committed up to 30 days in jail: The judge
must state his reasons for such conditions or for commitment.
The only persons subject to such a hearing are: (1) those charged
with a felony involving real or threatened bodily harm while on pre-
trial or appeal release; (2) those charged with similar crimes whom
the Government alleges by affidavit will inflict serious bodily harm on
another or "because of ... prior pattern of behavior" pose substantial
danger to the community; and (3) those charged with armed robbery
or Ch. 103 offenses (robbery and burglary).
Once the court grants the application for a hearing the defendant
is imprisoned until after the hearing and any appellate review. Hear-
ings must be held within 2 days after granting of the application unless
the defendant asks further delay.
At the hearing counsel will be provided if the defendant cannot
afford an attorney. All "relevant evidence and testimony" will be
heard. The defendant can present evidence and cross examine wit-
nesses. No testimony at the hearing is admissible at trial, nor is the
defendant's testimony waive any privilege of self-incrimination for a
later time. The defendant's rights to review are preserved. The same
judge may not sit at the hearing and at trial. A transcript of the
hearing will be paid for by the United States if the defendant cannot
afford one.
A person committed under this procedure will have his case put on
an expedited calendar. Continuances will be granted only for extra-
ordinary cause. However, the commitment can be extended if the trial
has begun within 30 days or if continuances have been granted on
defense motion.
4. S. 547 (Senator Tydings) : This bill reverses the presumption in Par.
3148 that a convicted person awaiting appear shall be entitled to
release unless there is reason to believe he will flee or be dangerous.
Under this provision a convicted person shall be committed to
460 Report of the Task Force on Law and Law Enforcement
custody unless the court finds that he is not likely to flee or present a
danger and that the appeal is not frivolous.
5. H.R. 578 (Congressman Rogers) : This bill allows danger to the com-
munity to be a factor in setting release conditions under 3146. It
also adds a new set of conditions of release for a defendant found to
be dangerous. The release conditions to be applied to dangerous per-
sons are similar to those for preventing flight, except that they omit
financial conditions and work releases. If no conditions will protect
the community, the defendant may be detained.
If detention is deemed proper, a detention order must be issued and
must include: (1) reasons for detention; (2) a directive that the trial
be expedited; and (3) provisions which make sure that defendant is
"given a reasonable opportunity to prepare for his trial. If the de-
fendant is not brought to trial in 60 days or if he has not delayed the
beginning of his trial, he shall be released after 60 days on such
conditions as the judicial officer may . . . impose."
The bill also contains provisions for detention of persons who are
charged with a new offense while on bail or who violate conditions of
release. For such persons new conditions may be set or detention may
be ordered. Before new conditions or detention may be imposed the
judge must determine that the defendant will flee or that he poses a
danger to the community.
Crimes committed while on bail are to be given a mandatory mini-
mum sentence. The sentence may not be suspended, nor probation
granted. The sentence for the offense committed on bail may not run
concurrently with any other sentence.
6. H.R. 2781 (Congressman McCulloch) : This bill creates one set of
release conditions for flight and another for dangerousness. If the
court determines that no conditions of release will reasonably assure
that the defendant will not pose a danger to the community, he may
order that he be detained. The bill limits the detention power to
persons charged with certain offenses: dangerous weapon offenses;
taking property by force or threat of force; offenses with physical
injury to others; narcotics and dangerous drug offenses.
REFERENCES
1. Elsa de Haas, The Antiquities of Bail (New York: Columbia Uni-
versity Press, 1940).
2. Pollack and Mailland, History of English Law (2d ed., 1898), Vol. 2,
at 590.
3. Darnel's Case, 3 How. It. Tr. 1 (1627).
4. Id. at 69.
5. Caleb Foote, "The Coming Constitutional Crisis in Bail," 113 U. of Pa
L. Rev. 959, 1125 (1965).
6. 1 Stat. 91, 33 (1789).
7. See 1 Annals of Congress 436 (1789-1791).
8. Federal Rules of Criminal Procedure, Rule 46.
9. Foote, Markel and Wooley, "Compelling Appearance in Court: Ad-
ministration of Bail in Philadelphia," 102 U. of Pa. L. Rev. 1031
(1954); Note, "A Study of the Administration of Bail in New York
City," 106 U. of Pa. L. Rev. 693 (1958). See also Rankin, "The Effect
of Pretrial Detention," 39 N.Y.U.L. Rev. 641 (1964).
The Bail Problem: Release or Detention Before Trial 461
10. See Arthur J. Goldberg, "Appendix" to Ronald Goldfarb, Ransom: A
Critique of the American Bail System (New York: Harper & Row,
1965), at 255.
11. As of 1968, 21 states and the federal government had enacted some
sort of bail reform legislation. In 12 more, legislation had been pro-
posed. Out of that 12, 6 had been defeated. However, very little is
known of the implementation of most of these statutes. To a large
degree, the reforms that have been made may exist only on paper.
See Vera Institute of Justice, "Proposal for Bail Jumping Study"
(unpublished memorandum, Apr. 19, 1968), at 3-4.
12. Bandy v. United States, 81 Sup. Ct. 197 (1960).
13. Goldfarb, supra note 10, at 96.
14. Id. at 1.
15. Arthur J. Goldberg, "Forward," Goldfarb, supra note 10, at x-xi.
16. Of 2,292 criminal cases in which bail was set in New York City in 1956,
bail could only be furnished in an average of 49 percent. The percent
varied with the amount of the bail required, from the 28 percent who
could not afford $500 bail to the 86 percent who could not post $7,500.
Note, 106 U. of Pa. L. Rev. 685 (1958).
17. Gideon v. Wainwright, 372 U.S. 335 (1963).
18. Griffin v. Illinois, 351 U.S. 12 (1956).
19. Douglas v. California, 372 U.S. 353 (1963).
20. Bandy v. United States, 81 Sup. Ct. 198 (1960).
21. See also Douglas v. California, 372 U.S. 353 (1963).
22. Goldfarb, supra note 10, at 2.
23. Id., Ch. 2
24. Id. at 2.
There is an even greater likelihood that demonstrators will appear
for trial than the usual criminal defendants, since many of them
demonstrate for the very purpose of provoking litigation and ulti-
mately being vindicated by the courts.
25. Mat 64.
26. Id. at 61.
27. Washington Post, Apr. 8, 1969, at A 1.
28. U.S. Circuit Court of Appeals Judge Skelly Wright, speaking on
"Checkbook Justice," WRC-TV (1966).
29. See Goldfarb, supra note 10, at 84.
30. Wright, supra note 28.
31. Harry Subin, "Bail for the Rich, Jail for the Poor," Nation, Mar. 24,
1969, at 364.
32. A.B.A., "Standards Relating to Pretrial Release" (1968), at 61.
33. See "Bail: An Ancient Practice Re-examined," 70 Yale L.J. 966, 967-68
(1961).
34. Most regulatory schemes aim at protecting the state from losses due
to uncollectable forfeitures. E.g., Pa. Stat. tit. 40, 831 et seq. New
York permits bonds to be written only by agents of licensed surety
companies. N.Y. Code Grim. Proc. 554 (b).
35. "Bail or Jail," 19 The Record of the Association of the Bar of the
City of New York 11, 12 (1964).
36. A.B.A., supra note 32, at 64.
The uniform Bail Bond Act of the National Association of Insur-
ance Commissioners provides some regulations but has been adopted
by only a few states. E.g., Cal. Ins. Code 1800 et seq.; Fla. Stat.
903.01 etseq. (1963).
37. Goldfarb, supra note 10, at 101.
38. Id. at 110.
39. Bail or Jail, supra note 35.
462 Report of the Task Force on Law and Law Enforcement
40. Powell v. Alabama, 287 U.S. 45, 57 (1932).
41. 102 U. Pa. L. Rev. 1031 (1954).
42. 106 U. Pa. L. Rev. 685 (1958).
43. Wald, "Pretrial Detention and Ultimate Freedom: A Statistical
Study," 39 N.Y.U.L. Rev. 631 (1964).
44. Of the 177,000 defendants formally charged with serious offenses in
the 1965, 9,000 were dismissed and 8,000 were acquitted at trial. Of
the 160,000 convicted, 56,000 were placed on probation. President's
Commission on Law Enforcement and Administration of Justice
(hereinafter cited as Crime Commission), Challenge of Crime in a
Free Society (Washington, D.C.: Government Printing Office, 1967).
45. U.S., Congress, Committee on the Judiciary, Improvements in Judicial
Machinery, Hearings, before a subcommittee on Constitutional Rights,
Senate, 88th Cong., 2d sess., 1964, Testimony of James Bennett, former
Director of the United States Bureau of Prisons, at 46.
46. Assemblyman William T. Bagley, Chairman, Assembly Committee on
Judiciary, California Assembly, press release, Mar. 10, 1969.
47. Andrew Schaffer, "The Problem of Overcrowding in the Detention
Institutions of New York City: An Analysis of Causes and Recom-
mendations for Alleviation" (Report to the Mayor's Criminal Justice
Coordinating Council, Vera Institute of Justice, Jan. 1969), at iv.
48. Testimony of Herbert Sturz, Executive Director, Vera Institute of
Justice, to the Senate Subcommittee on Constitutional Rights, quoted
by Goldfarb, supra note 10, at 152.
49. See also Ares, Rankin, and Sturz, "The Manhattan Bail Project," 38
N.Y.U.L. Rev. 67 (1963).
50. See Vera Institute of Justice, "Proposal for Bail Jumping Study,"
supra note 11.
51. A comprehensive list of existing bail projects and statistics describing
their operations currently is being prepared by the Vera Institute of
Justice in New York. Through the Bureau of Applied Research at
Columbia University, Vera is conducting a study to attempt to deter-
mine the factors useful in predicting the appearance of defendants
released on summonses.
52. 111. Rev. Stat., ch. 38, 110-1 et seq.
53. Schaffer, supra note 47, at 50-51.
54. 111. Rev. Stat. ch. 38, 107-12 (1963).
55. Cal. Pen. Code 853.6.
56. Ronald L. Goldfarb and Linda R. Singer, "Problems in the Adminis-
tration of Justice in California" (Report of the Assembly Committee
on Judiciary, California Legislature, 1969), at 26-27.
57. Gertrude Samuels, "A Summons Instead of an Arrest," New York
Times Magazine, July 26, 1964.
58. Memorandum from Police Liaison Office, Vera Institute of Justice, to
the Police Commissioner of the City of New York, Manhattan Sum-
mons Project, August 30, 1968.
59. Id.
60. Id.
61. Id.
62. 80 Stat. 214 (Pub. L. 89-465, 89th Cong., 2d sess., 1966).
63. 80 Stat. 327 (Pub. L. 89-519, 89th Cong., 2d sess., 1966).
64. The Bail Reform Act, Legislative Analysis, American Enterprise In-
stitute for Public Policy Research, Analysis #6, Apr. 14, 1969, Wash
ington, D.C., at 1.
65. See A.B.A., supra note 32, at 55:
"Presently, bail is set in practically every case, however, minor or
serious, without respect to its particular facts. Without reflection,
The Bail Problem: Release or Detention Before Trial 463
courts assume that bail is a necessary element of the criminal process.
. . . There is in fact an element of the criminal process. . . . There is
in fact an unspoken presumption that bail should be set in every case
unless the defendant makes a showing to the contrary."
66. 18 U.S.C. 3146 (a).
67. 18 U.S.C. 3146. The judge may:
(1) Place the person in the custody of a designated person or or-
ganization agreeing to supervise him ;
(2) Place restrictions on the travel, association, or place of abode of
the person during the period of release ;
(3) Require the execution of an appearance bond in a specified amount
and the deposit in the registry of the court, in cash or other
security as directed, of a sum not to exceed 10 per centum of the
amount of the bond, such deposit to be returned upon the perform-
ance of the conditions of release;
(4) Require the execution of a bail bond with sufficient solvent sure-
ties, or the deposit of cash in lieu thereof; or
(5) Impose any other condition deemed reasonably necessary to as-
sure appearance as required, including a condition requiring that
the person return to custody after specified hours.
68. U.S.C. 3146 (d).
69. U.S.C. 3147.
70. 18 U.S.C. 3148.
71. U.S. Congress, Committee on the Judiciary, Bail Reform Act of 1966,
Hearings, before a subcommittee on Constitutional Rights, Senate,
91st Cong., 1st sess., 1969 (hereinafter cited simply as Hearings) ;
prepared statement of Chief Judge Harold H. Greene, District of
Columbia Court of General Sessions, Jan. 21, 1969, at 1.
72. S. Rept. No. 750, 89th Cong., 1st sess. (1965).
73. Hearings, supra note 71; prepared statement of Patricia M. Wald,
Jan. 22, 1969, at 1.
74. Id,; prepared statement of Charles L. Decker, Jan. 23, 1969, at 2.
75. See e.g., Bagley, supra note 46:
The traditional use of money bail is a prime example of a practice
which has proven unnecessary, ineffective and discriminatory against
the poor. Numerous studies have proven that most defendants will
appear regardless of whether or not they have posted bail. There is
no reason that a person who has a job and family in a community
should be "ransomed" by a bail bond, which is not refunded even if he
is proven innocent. The concept of equal justice cannot tolerate the
continuation of such a system.
76. Hearings, supra note 71; prepared statement of Harry I. Subin, As-
sociate Director, Vera Institute of Justice, Jan. 28, 1969, at 1-2.
77. See generally "Report of the Judicial Council Committee to study the
Operation of the Bail Reform Act in the District of Columbia" (D.C.
Circuit, May, 1968) (Ad Hoc Committee).
There have been fewer problems in the federal courts in other dis-
tricts. Consequently, Judge Charles E. Wyzanski, Jr. of the Federal
District Court in Massachusetts, has cautioned against amending the
Bail Reform Act, which applies to all federal courts, in order to deal
with problems that may be peculiar to the District of Columbia:
It may be necessary to do something about the Act in the
District of Columbia, but it would be wicked in the rest of the
nation. Don't forget this is a very big country we're governing.
From a telephone interview with Judge Charles E. Wyzanski, Jr.,
Apr. 10, 1969.
464 Report of the Task Force on Law and Law Enforcement
78. Hearings, supra note 71; prepared statement of Judge Tim Murphy,
District of Columbia Court of General Sessions, at 2.
79. Id.; prepared statement of Bruce D. Beaudin, Director, District of
Columbia Bail Agency, Feb. 4, 1969, at 2-3.
80. Washington Post, Feb. 2, 1969, at D2.
81. "Report of the Judicial Council Committee to Study the Operation of
the Bail Reform Act," supra note 77, at 9-10.
82. Hearings, supra note 71 ; Beaudin.
83. Id.; Greene, at 6-8.
84. Id.; prepared statement of Senator Joseph D. Tydings, Jan. 22, 1969.
During fiscal 1968, the U.S. District Court for the District of
Columbia slightly reduced its criminal backlong. But almost 40 per-
cent of the cases pending in the court at the end of Fiscal 1968 had
been on the calendar for 6 months or more. Twenty-one percent had
been pending for over a year.
85. Id. at 1.
86. Id. at 4-5.
87. "Report of the Judicial Council Committee to study the Operation of
the Bail Reform Act," supra note 77, at 25.
88. Hearings, supra note 71; prepared opening statement of Senator
Roman L. Hruska, Jan. 21, 1969, at 2-3.
89. Id.; Murphy, at 5.
90. Washington Post, Feb. 2, 1969, at Dl.
91. Norman Lefstein, Analysis of Metropolitan Police Department's Study
Concerning Crime on Bail, Department of Justice, Office of Criminal
Justice, Jan. 1969.
92. Hearings, supra note 71 ; Murphy, at 5.
93. Id. at 3-4.
94. Id. at 4.
95. "Report of the Judicial Council Committee to Study the Operation of
the Bail Reform Act," supra note 77, at 27-28.
96. Hearings, supra note 71 ; Greene, at 2.
97. Id. at 4.
98. Id.; prepared statement of Chief Judge Curran, U.S. District Court
for the District of Columbia, Feb. 4, 1969, at 6.
99. "Report of the Judicial Council Committee to Study the Operation of
the Bail Reform Act," supra note 77.
100. Id.
101. Id.
102. "Report of the Judicial Council Committee to Study the Operation of
the Bail Reform Act" (D.C. Circuit, May, 1969).
103. Id.
104. Goldfarb, supra note 10, Ch. 6.
105. Ronald Goldfarb, "A View of the Crime Problem," address to the
American Jewish Congress, Washington, D.C., Feb. 12, 1969.
106. See Daniel J. Freed and Patricia M. Wald, Bail in the United States:
1964 (Washington, D.C.: Department of Justice, 1964), at 2-3.
107. Seventh Interim Report of the State of New York Temporary Com-
mission on Revision of the Penal and Criminal Code. 1968, at 193-194.
108. Id. (1967), at 435-36.
109. Id. (1969), Part A, Section b. To be published.
110. Cited by Alan M. Dershowitz, "On 'Preventive Detention/ " New
York Review of Books, Mar. 1969, at 22.
111. A brief analytical summary of these bills' principal provisions is con-
tained in app. A.
The Bail Problem: Release or Detention Before Trial 465
112. See, e.g., Abraham I. Goldstein, "Jail Before Trial," New Republic,
Mar. 8, 1969, at 15, 16; Shaeffer, supra note 47, at 3, 29; Hearings,
supra note 71 ; Wald at 8.
113. Hearings, supra note 71; Murphy, at 7.
During periods of civil disturbances, judges are even more likely to
use high money bail in order to keep suspected riot participants in
jail. The issue has been raised of whether judges should openly be
given the power to detain in emergency conditions. See, e.g., "Report
of the Judicial Council Committee to Study the Operation of the Bail
Reform Act," supra note 77, at 29-30.
An existing federal statute, it may be noted, gives the Attorney
General the power detain people suspected of possible espionage or
sabotage upon a presidential declaration of an "internal security
emergency."
50 U.S.C. 811-819.
114. See generally testimony of Harry I. Subin, Associate Director of the
Vera Institute of Justice, in Hearings, supra note 71.
An offhand statement by the prosecutor that the defendant is "part
of a ring," "will continue violating the law as he has in the past,"
"will intimidate witnesses," or "is reputed to be part of the Mafia,"
will frequently and effectively preclude the defendant from being re-
leased. Hearings, supra note 71; Prepared Statement of Harry D.
Steward, Executive Director, Defenders Inc., San Diego, California.
115. Crime Commission, supra note 44, Task Force Report: The Courts,
at 40.
116. E.g., A.B.A., supra note 32, at 65-66; Note, "Preventive Detention,"
36 Geo. Wash. L. Rev. 178 (1967) ; Note, "Preventive Detention Be-
fore Trial," 79 Harv. L. Rev. 1489, 1502-03 (1966) ; Hearings, supra
note 71 ; Tydings, at 9.
117. Crime Commission, supra note 44, Challenge of Crime in a Free
Society, at 131.
118. Hearings, supra note 71; Subin, at 11.
119. Dershowitz, supra note 110, at 23-24.
120. See A.B.A. supra note 32, at 70; Note, "Preventive Detention Before
Trial," supra note 116, at 1500.
121. T. B. Smith, "Bail Before Trial: Reflections of a Scottish Lawyer,"
108 U. Pa. L. Rev. 305, 309 (1960).
122. See, e.g., Carlson v. Landon, 342 U.S. 524 (1952) (5-4 decision, hold-
ing that Eighth Amendment does not prevent Congress from making
some classes of offenses non-bailable.)
Compare Carbo v. United States, 82 S. Ct. 662 (1962), with William-
son v. United States, 184 F. 2d 280, 282-83 (1950); Compare Mastrian
v. Hedman, 326, F. 2d 708 (8th Cir.), cert, denied, 376 U.S. 965
(1964), with Trimble v. Stone, 187 F. Supp. 483 (D.C. 1960).
123. See supra, notes 5-8, and accompanying text.
124. Foote, supra note 5, at 1182.
125. Ervin, "The Legislative Role in Bail Reform," 35 Geo. Wash. L. Rev.,
429,445 (1967).
126. A.B.A., supra note 32, at 67; See also Note, "Preventive Detention
Before Trial," supra note 116, at 1500-05.
127. Hearings, supra note 71 ; Murphy, at 7.
128. Id.; Greene, at 7.
129. See, e.g., Washington Post, Feb. 2, 1969, at D 1.
130. Dershowitz, supra note 110, at 24-25.
131. The President's Commission on Crime in the District of Columbia
(Washington, D.C.: Government Printing Office, 1966), at 527.
466 Report of the Task Force on Law and Law Enforcement
132. Hearings, supra note 71 ; Wald.
Any statistics describing the performance of defendants released
pending trial are extremely rare. See Goldstein, supra note 112,
at 16.
133. Hearings, supra note 71 ; Wald, at 5.
134. See, generally, Don M. Gottfredson, "Assessment and Prediction
Methods in Crime and Delinquency," Crime Commission, supra note
44, Task Force Report: Juvenile Delinquency, app. A, and the bibliog-
raphy contained therein.
135. See James Robinson & Paul Tagaki, "Case Decision in a State Parole
System" (Research Division, California Department of Corrections,
1968).
136. See generally Alan M. Dershowitz, "The Concept of Legal Responsi-
bility and Its Relationship to Psychological and Sociological Knowl-
edge," consultant's paper prepared for this Task Force.
137. Hearings, supra note 71; statement of Professor Alan Dershowitz,
Jan. 23, 1969, at 2-3.
138. E. Savides, A Parole Success Prediction Study, and D. M. Gottfredson,
"Comparing and Combining Subjective and Objective Parole Predic-
tions," California Department of Corrections, Research Newsletter,
Sept.-Dec. 1961.
139. Michael Hakeem, "Prediction of Parole Outcome from Summaries of
Case Histories," 52 J. of Criminal Law, Criminology and Police Sci-
ence 145 (1961).
140. See Daniel Glaser, "Prediction Tables as Accounting Devices for
Judges and Parole Boards," 8 Crime and Delinquency 239 (1962).
141. Glaser has found the two most selective characteristics to be an
offender's "social development pattern" and the age at which he first
left home for six months or more. Daniel Glaser, "The Efficacy of Al-
ternative Approaches to Parole Prediction," 20 American Sociological
Review (1955), at 283-287.
142. For the history of prediction studies, see Hermann Mannheim and
Leslie T. Wilkins, Prediction Methods in Relation to Borstal Training
(London: Her Majesty's Stationery Office, 1955), ch. 1.
143. See Johan Thorsten Sellin and Marvin E. Wolfgang, The Measure-
ment of Delinquency (New York: Wiley, 1964), at 349:
. . . only when we have an index with a quantitative scale for meas-
uring delinquency can we give an explicit account of what we are
measuring. The relatively undeveloped state of measuring instru-
ments for such purposes in the social sciences has been an obstacle to
efficient and economical research. If measurements of time, tempera-
ture, length, or weight had to be newly invented for each research
analysis in the physical sciences, progress in those fields would indeed
have been slow. Yet in criminology and in the social sciences generally,
there has been little or no systematic theory stipulating how to select
fundamental dimensions of conduct in order to measure certain social
events.
144. Gottfredson, supra note 134, at 181.
145. Don Gottfredson, "Release on Recognizance: A Proposed Model for
Study" (unpublished paper, 1966), at 11.
146. See Glaser, supra note 140.
147. Victor H. Evjen, 8 Crime and Delinquency 215 (1962).
148. See generally Dershowitz, supra note 136.
"Attitudes which help to explain the lag by parole boards in the
use of prediction tables may be summarized roughly under five heads :
(1) sensitivity to public opinion, (2) desire to encourage construc-
tive use of prison time, (3) a firm belief in the uniqueness of each
The Bail Problem: Release or Detention Before Trial 467
case, (4) frustration of intelligent selection for parole because of legal
or traditional restrictions, and 5) reactions to the prediction devices
themselves." Norman Hayner, "Why Do Parole Boards Lag in the
Use of Prediction Scores?" Pacific Sociological Rev. (1958), at 73.
149. Dershowitz, supra note 110, at 27; memorandum to Daniel Freed, Feb.
28, 1969 (unpublished).
150. A.B.A., supra note 32, at 69.
151. Hearings, supra note 71 ; Curran.
152. Id.; Beaudin, at 4-5.
153. A.B.A., supra note 32.
CHAPTER 20
THE CONSTITUTION AND RIGHTS OF
THE ACCUSED*
Increasingly in recent years, it has been said, the procedures
for judging criminal prosecutions in our country have unduly fa-
vored the accused, and they are, therefore, partly responsible for
the increases in violent crime. Is this charge true, particularly
with regard to the recent opinions of the U.S. Supreme Court on
the Fifth Amendment privilege against self-incrimination? That
is the question which this chapter seeks to answer.
THE VIEW OF THE CRITICS
Quinn Tamm, of the International Association of Chiefs of
Police, has stated the criticisms of the courts in general and the
Supreme Court in particular:
The Courts in too many cases are ignoring the public's
right to protection. . . . The fabric of criminal law has be-
come such a patchwork that too often the killer-fish escapes
through the holes while those responsible for netting them
become entangled in the ravelings and are rendered im-
potent. . . . Could it be then, that the deterrent effect of swift,
sure and just punishment has been lost because the courts
have become preoccupied with the rights of the individual
rather than the rights of society? The scales of justice are
getting out of balance. Too often, the criminal ascends to
the role of the victim or underdog when he is apprehended
and the full force of legal machinery directed against him.
Too often the original victim of the murderer or the rapist
or the child molester fades from memory as overwhelming
public and judicial compassion is lavished on the criminal. 1
Some critics have asserted a direct casual relationship between
* This chapter was prepared by Dorsey D. Ellis, Jr., professor at the
University of Iowa Law School, based in part on research papers by Timothy
James Bloomfield, Esq., of Washington, D.C.
469
470 Report of the Task Force on Law and Law Enforcement
rising crime rates and those decisions by the courts which have
broadened procedural protections:
Among the elements in American life which have con-
tributed to the growth of crime, one of the most obvious
and immediate is judicial leniency. [T]he Supreme Court's
sustained venture in relieving the criminal of psychic dis-
comfort has contributed heavily to the current upsurge of
lawlessness. 2
A noted former police chief has made the connection explicit be-
tween the rulings of the courts protecting the accused and the
crime rate by pointing to the rising level of crime "since 1954,
which was the year of Irvine, and the year before Cahan." 3
Other critics of the Supreme Court, who do not blame it di-
rectly for the increasing level of violence, are of the view that
its decisions have at least seriously undermined the efforts of
law enforcement agencies and impeded their ability to solve
crimes. Senator Ervin has argued:
Increasingly in the last decade our law enforcement offi-
cers have been limited and often hamstrung in dealing with
crime by high court rulings . . . [which have] stressed indi-
vidual rights of the accused to the point where public safety
has often been relegated to the back row of the court room. 4
A former police commissioner has similarly asserted:
It is my firm conclusion that recent Supreme Court
decisions have unduly hampered and will in the future
further hamper the administration of criminal justice. 5
An official of the National District Attorneys Association has
declared :
This country can no longer afford a civil rights binge that
so restricts law enforcement agencies that they become in-
effective. 6
Prominent members of the judiciary have joined in the criti-
cism of the Court's rulings on this ground. Chief Judge Lumbard
of the New York Court of Appeals has suggested that "we are
in danger of a grievous imbalance in the administration of
criminal justice":
In the past forty years there have been two distinct trends
in the administration of criminal justice. The first has been
to strengthen the rights of the individual; and the second,
which is perhaps a corollary of the first, is to limit the
powers of law enforcement agencies. Most of us would agree
that the development of individual rights was long overdue ;
The Constitution and Rights of the Accused 471
most of us would agree that there should be further clari-
fication of individual rights, particularly for indigent defend-
ants. At the same time we must face the facts about indif-
ferent and faltering law enforcement in this country. We
must adopt measures which will give enforcement agencies
proper means for doing their jobs. In my opinion, these two
efforts must go forward simultaneously. 7
These criticisms are serious and cannot be summarily dis-
missed, although they should be placed in proper prospective.
For, as Professor Yale Kamisar, a noted student of American
criminal procedure, has pointed out, 8 there has always been a
"crime crisis," and the Supreme Court has long been accused of
"coddling the criminal." For example, in 1910 the President of
the California Bar Association called for "adjustment" in our
criminal proceedings "to meet the expanding social necessity."
He believed that:
Many of the difficulties [were] due to an exaggerated
respect for the individual as the isolated center of the uni-
verse. There is too much admiration for our traditional
systems and too little respect for the needs of the society. 9
Arguments accusing the courts of tipping the scales of justice
in favor of the accused are not novel. To quote Professor
Kamisar :
. . . [A]t the Sixth Annual Meeting of the ABA in the year
1883, Professor Simeon E. Baldwin, one of the giants of the
legal and teaching profession, pled for an end to the false
humanitarianism which had led us astray so that "the state,
in its judicial contests with those whom it charges with
crime, [will be given] once more an equal chance." 10
Today perhaps the most trenchant and effective critic of the
Supreme Court's decisions in this area has been Judge Henry J.
Friendly of the U.S. Court of Appeals for the Second Circuit. 11
His position will be subjected to careful analysis later in this
chapter but first we must examine in some detail the body of
law which has aroused all this controversy.
MIRANDA AND ITS ANTECEDENTS
In Miranda v. Arizona, 1 ' 2 the Court decided in 1966 that no
statement obtained from a suspect during custodial interrogation
could be introduced as evidence against him in a criminal trial
unless
(1) He had been clearly warned prior to interrogation
that
472 Report of the Task Force on Law and Law Enforcement
(a) He had the right to remain silent;
(b) Anything he said could later be used against
him;
(c) He had the right to have counsel present dur-
ing questioning; and
(d) If he lacked funds to obtain a lawyer, he would
be provided with one by the state ; and
(2) He had "knowingly, and intelligently" waived those
rights. 18
Unlike its decisions in Escobedo v. Illinois u and in Massiah v.
United States, 1 * both of which have been criticized because of
their anticipated effect on confessions, the decision in Miranda
can truly be described as a landmark decision. 16 But there were
substantial precedents, prior to Escobedo and Massiah, for such
an extension of the testimonial privilege of the fifth amendment
to the investigation stage of the "criminal case."
Prior to 1897, the Court had viewed confessions in light of the
common law rules of evidence which excluded those obtained
under coercion, 17 but in that year, in Bram v. United States, 18
the Court overturned a federal murder conviction on the ground
that the defendant's statements had not been truly voluntary,
although he had not been subjected to physical coercion and,
judging by the facts recited in the Court's opinion, he had been
subjected to little pressure of any kind. 19 In that decision the
Court first applied the Fifth Amendment privilege to events
which occurred outside the courtroom, holding that in federal
courts :
Wherever a question arises whether a confession is in-
competent because not voluntary, the issue is controlled by
that portion of the Fifth Amendment to the Constitution of
the United States, commanding that no person "shall be
compelled in any criminal case to be witness against him-
self." 20
After the decision in Bram, the Court was frequently called
on to pass upon the competence of confessions and did not, even
in cases arising out of the lower federal courts, always adhere
to the Bram rationale. 21 In one subsequent decision, the Court
even expressed some uncertainty whether "involuntary confes-
sions are excluded ... on the ground of the Fifth Amendment's
protection against self-incrimination, or from a rule that forced
confessions are untrustworthy." 22 Further consideration of this
question in the context of federal cases was, however, cut off
by the Court's decision in McNabb v. United States 23 which im-
posed strict limitations on the custodial interrogation of suspects
by federal agents, a rule imposed in the exercise of the Court's
The Constitution and Rights of the Accused 473
power of supervision over the administration of criminal justice
in the federal courts and not as a matter of constitutional in-
terpretation.
At the same time, the Court began to evolve constitutional
criteria for determining the admissibility of confessions in state
court cases. Precluded from direct application of the Fifth
Amendment privilege to state prosecutions by its holding in
Twining v. New Jersey-* that the Fifth Amendment did not
apply to the states, the Court began to achieve the same result
by indirection through the due process clause of the Fourteenth
Amendment. In Brown v. Mississippi^ decided in 1936, the
Court reversed the conviction of three Negroes for murder on
the ground that the confessions of the defendants had been
extracted from them by repeated whippings and other forms of
physical torture. Although the Court accepted the State's argu-
ment that the Fifth Amendment privilege did not expressly
apply, 26 it held the admission of the confession to be a clear
denial of due process and therefore barred by the Fourteenth
Amendment.
The Brown decision marked the beginning of a long case-by-
case evolution which climaxed with Miranda. Between 1936 and
1963, the Court decided, with full opinions, 33 confession cases
arising from state courts. 27 Under the due process standard
applicable in those cases, the Court established both an "ob-
jective" and a "subjective" test against which allegedly coerced
confessions were to be measured. 28 Under the "objective" test
fell those confessions which stemmed from a situation
so inherently coercive that its very existence is irrecon-
cilable with the possession of mental freedom by a lone
suspect against whom its full coercive force is brought to
bear. 29
"Inherently coercive" situations included those where actual or
threatened physical force, 30 or protracted, continuous and unre-
lenting questioning* 1 had been used to elicit the proffered con-
fession. When such situations were found, the Court did not even
inquire as to the ability of the accused to resist such pressures;
the coercive effect was presumed as a matter of law. 32
The "subjective" test required an inquiry into the. "totality of
circumstances" surrounding the obtaining of the confession and
the "weighing of the circumstances of pressure against the power
of resistance of the person confessing." 33 Under that test the
Court looked at factors such as the nature and duration of the
questioning, even where it was not sufficiently protracted, con-
tinuous and unrelenting to fall under the "objective" standard, 34
the age of the accused, 35 the intelligence and literacy levels of
the accused, 36 threats (other than those of physical violence), 37
474 Report of the Task Force on Law and Law Enforcement
deception, 88 delay in arraignment, request by the accused for
counsel, 40 and the failure to warn the accused of his right to
counsel and his right to remain silent. 41 Thus, although the
"totality of circumstances" standard required a balancing of the
pressures used in eliciting incriminatory statements against the
presumed ability of the particular individual to resist them, many
of the factors which went into that process foreshadowed the
guidelines laid down in Miranda.
The Court was, of course, avowedly applying the due process
standard of the Fourteenth Amendment in passing upon the
"voluntariness" of confessions introduced in state court trials.
But its opinions increasingly began to suggest that the standards
being applied were "grounded in the policies of the privilege
against self-incrimination." 4 - Although the Court had at one
time questioned whether the basis for exclusion of involuntary
confessions was not lack of reliability rather than the Fifth
Amendment privilege, 43 in Rogers v. Richmond 44 it reversed a
state court conviction involving an "involuntary" confession on
the ground that the lower courts had erred in considering
whether the confession was "reliable." The rationale of the
Court's decision was clearly in Fifth Amendment terms:
Our decisions . . . have made clear that convictions fol-
lowing the admission into evidence of confessions which are
involuntary; i.e., the product of coercion, either physical
or psychological, cannot stand. This is so not because such
confessions are unlikely to be true but because the methods
used to extract them offend an underlying principle in the
enforcement of our criminal law : that ours is an accusatorial
and not an inquisitorial system a system in which the State
must establish guilt by evidence independently and freely
secured and may not by coercion prove its charge against
an accused out of his own mouth. 45
The Court's 1964 decision in Malloy v. Hogan finally ex-
tended the reach of the Fifth Amendment privilege expressly to
state proceedings. It therefore contributed markedly to the im-
pact of the Court's interpretations of the privilege and lent added
impetus to the criticisms of those interpretations. Malloy was
closely followed by Escobedo v. Illinois 47 decided during the same
term, which held that a suspect who demanded to confer with
his lawyer during station house interrogation could not be denied
that right. Although it was unclear from the Court's opinion
whether the right enforced by the Escobedo decision had its
basis in the Fifth Amendment privilege or the Sixth Amendment
right to counsel, 48 the Court subsequently interpreted the decision
as following from the Fifth. 49 Finally, two years later in Miranda
v. Arizona, the Court held that a defendant must be warned of
The Constitution and Rights of the Accused 475
his right to remain silent and of his right to counsel before being
interrogated.
IMPACT OF THE MIRANDA INTERROGATION RULES
Escobedo and Miranda were, to a greater degree than their
critics admit, a natural and reasonable outgrowth of the prin-
ciples evolved in previously decided cases. The decisions indicated
quite clearly, even before Malloy, that the policies underlying the
privilege against self-incrimination applied to the interrogation
process, whether the case arose in the federal system or in the
state courts, with the result that a confession had to be found to
be "voluntary," i.e., not "compelled," to be admissible against
the defendant at the trial of "any criminal case." 50 The rules
laid down in Miranda proceed as a logical extension from an
implementation of that principle.
Even if this is true, however, the basic practical question
remains : what is the impact of the Miranda interrogation rules
on effective law enforcement? Assuming that such decisions
would reduce police effectiveness, James Q. Wilson asked:
For what crimes will the effect be greatest? In all prob-
ability, it will be for crimes other than those producing the
greatest citizen anxiety . . . [V]iolent crime typically pro-
duces an eye-witness the victim. (To be sure, in murder
cases the eyewitness is often dead, but the police solve the
vast majority of all murders anyway.) An assault or robbery
gives the victim a look at his assailant . . . Prosecutions and
convictions often depend on this testimony of victim-wit-
nesses and no confession is needed. 51
Another critic, however, is not persuaded that the utility of
confessions is limited to cases other than those involving violent
crimes :
... I suggest that consideration be given to the situation
presented by cases such as these. A man is hit on the head
while walking home late at night. He did not see his assail-
ant, nor did anyone else. A careful and thorough search of
the crime scene reveals no physical clues. Then take the
case of a woman who is grabbed on the street at night and
dragged into an alley and raped. Here, too, the assailant
was unaccommodating enough to avoid leaving his hat or
other means of identification at the crime scene; and there
are no physical clues. All the police have to work on is the
description of the assailant given by the victim herself. She
described him as about six feet tall, white, and wearing a
dark suit. 52
476 Report of the Task Force on Law and Law Enforcement
These predictions are academic and speculative. Open criti-
cisms, like those previously mentioned by law enforcement offi-
cials, center on a felt but undemonstrated perception of frustra-
tion in the solution of crime because of the feared loss of what
has perhaps become a favorite tool. The hypothetical situation
described above, however, while indeed a serious law enforcement
problem, has nothing to do with the Miranda rule or even with
confessions. The police have never been able to solve these
cases, not because they cannot obtain a confession, but because
they do not even find a suspect whom they can question!
Accurate empirical information on the effect of the extension
of the privilege against self-incrimination on the rate of con-
victions, much less on the incidence of crime, is hard to come by.
For example, two New York studies contradict each other.
Justice Nathan Sobel of the New York Supreme Court has
stated that of 1,000 indictments in Kings County (Brooklyn),
N.Y., the prosecution has filed the required "notice of inten-
tion" r>s to use "confessions" (which are definied as including
both inculpatory and exculpatory statements) in only 86, and
that of the nine murder indictments included in the sample not
a single one involved a "confession." r>4 On the basis of this
admittedly small sample, "fortified by the individual experiences
of the trial judges consulted," Justice Sobel concluded that "con-
fessions constitute part of the evidence in less than 10 percent
of all indictments." r>r> Justice Sobel's findings were made after
Escobedo, but before Miranda. Thus, while the figures may be
distorted somewhat by the exclusion of confessions which might
have been obtained but for the Escobedo rules, it is doubtful
that any such distortion would be signicant since, as Justice
Sobel notes, "normally suspects do not confess after they 'request'
counsel," r>0 and the impact of the Miranda rules had, of course,
not been felt at that time.
In contrast with Justice Sobel's findings are those of New
York District Attorney Frank Hogan, who reported that of the
91 homicide cases then pending in New York County (Manhat-
tan), confessions would be offered at trial in 62, or 68 percent,
and that in 25 homicide cases indictments would not have been
obtained without confessions. 57 Mr. Hogan also has pointed out
that the number of confessions offered in evidence is not a true
index of the need for and value of police interrogation because
there are "a great many cases in which, as a result of admis-
sions, leads are obtained which result in the discovery of ad-
ditional evidence." r>8
We do not know, of course, to what extent convictions would
not be possible in the absence of evidence discovered solely as a
result of leads obtained from interrogations and which could not
otherwise have been discovered. Nor do we know to what extent
The Constitution and Rights of the Accused 477
reliance upon police interrogation has become a substitute for
using other available methods of investigation (or methods which
would be available with additional manpower) which would
result in sufficient evidence to convict. 59 The hypothetical ex-
amples offered by those who contend that the interrogation of
suspects is the only means of solving certain crimes are fre-
quently cast in such extreme terms that they raise substantial
questions as to how the police can reasonably decide which sus-
pects to interrogate. For instance, in the rape case example
given by Professor Inbau, the police surely would not subject
to interrogation every male "about six feet tall, white, and wear-
ing a dark suit." Finally, statistics as to the number of con-
fessions used at trial tell us nothing about the degree to which
the obtaining of guilty pleas is influenced by admissions or con-
fessions obtained during custodial interrogation. 61
California, however, has for some time maintained unusually
reliable crime statistics which provide one suggestive means of
determining the effect of recent Supreme Court rulings on law
enforcement efforts. Justice Stanley Mosk of the Supreme Court
of California, who himself served as Attorney General of Cali-
fornia, has said :
The effect of court decisions on crime and criminals is
determined by the results after arrest. The test is not how
many arrests are made, but whether defendants charged
with serious crimes are now being turned loose. An analysis
of this subject reveals that there has been no effect whatever
upon criminals convictions by recent landmark decisions. 62
In fact, Justice Mosk found that the rate of convictions in Cali-
fornia has generally increased each year since 1955. He con-
cluded, "decisions by the United States Supreme Court, and by
the California Supreme Court, have not in the slightest hampered
prosecution of criminals."
Other indications shew that the rules laid down in Miranda
and other recent decisions should not be expected to have, and
have not had in fact, any substantial effect upon the rate of
confessions. As the psychologist Theodore Reik has pointed out,
man has a "compulsive unconscious tendency to confess," 63
even at times to matters which could not possibly have oc-
curred. For example, during the late Renaissance large num-
bers of persons confessed to witchcraft, without either the
pressure or threat of torture, most notably in England where
judicial torture was never utilized in such cases. 64
Again and again, when we read the case histories we find
witches freely confessing to esoteric details without any
evidence of torture, and it was this spontaneity, rather than
478 Report of the Task Force on Law and Law Enforcement
the confessions themselves, which convinced rational men
that the details were true. 65
The "compulsion to confess" is also borne out by modern
experience. One study disclosed that in 48 observed cases, of all
admissions in field situations, more were made voluntarily than
were made after questioning. 66 It may well be that some types
of cases described by critics of the Miranda decision would
not be effected by it because they represent situations where
the accused felt an internal compulsion to blurt out proof of his
guilt as soon as he thought he had been found out. 67
Several studies have investigated the impact of Miranda in
particular locales, and they invariably conclude that such rules
had no significant impact upon the obtaining of confessions. 68
A survey in the District of Columbia found that the rate of con-
fessions remained nearly uniform before and after Miranda and
that only 7 percent of these given Miranda warnings requested
counsel, who were available on an around-the-clock basis. 69 In
New Haven, a study of 114 interrogations found that 58 pro-
duced confessions, 50 of which were obtained after Miranda
warnings were given. 70
These findings seem to indicate that the controversy over
Miranda is not justified. But this lack of impact may be largely
attributable to failure of the police to communicate the Miranda
warning effectively. The suspect may not have been warned or
only partially warned, or perhaps he did not understand the
warning. 71 In other words, the Miranda warning may not have
been given in a manner that effectively informed the accused of
his rights. Perhaps it is against human nature to expect the
police, whose interest opposes the principles embodied in the
warning, to effectively carry out Miranda's mandate. 72
The effects of the Escobedo-Miranda interrogation rules on the
number of pretrial confessions given, and the number of crimes
"cleared" or solved, seem to put the burden of persuasion on the
Court's critics. 73 The argument for any casual link between the
Court's decisions and crime rates appeals to the post hoc ergo
propter hoc fallacy. 74 Any accused sophisticated enough to fol-
low the decisions of the Supreme Court and weigh their effect
on the likelihood of his conviction for his next crime is probably
unlikely to confess absent counsel or absent a Miranda warning
of his rights.
Crime rates seem to rise and fall on the tides of economic,
social and political cycles with little relation to the decisions of
the Supreme Court. As the President's Commission on Law
Enforcement and Administration of Justice found, and as the
Violence Commission's Task Force on Individual Acts of Vio-
lence confirms, slum conditions, narcotic addiction, cultural in-
The Constitution and Rights of the Accused 479
equalities, increasing poverty in the midst of rising affluence,
the breakdown of home and family life and discipline, and the
frustration and restlessness of youth, factors over which neither
the Supreme Court nor any other court has any control, are the
real culprits with which our society must be concerned. 75
[C]ourt rules do not cause crime. People do not commit
crimes because they know they cannot be questioned by
police before presentment, or even because they feel they
will not be convicted. We as a people commit crimes be-
cause we are capable of committing crimes ... In the long
run, only the elimination of the causes of crime can make
a significant and lasting difference in the incidence of
crime. 76
As David Acheson, former U.S. Attorney for the District of
Columbia, once remarked, court decisions "have about the same
effect on the crime rate as an aspirin would have on a tumor of
the brain."
Police officials themselves, interestingly enough, quickly point
out the relationship between socio-economic factors and crime
rates when they are required to defend themselves against
charges of inefficiency in police operations. 0. W. Wilson, former
Superintendent of the Chicago Police Department, for example,
in a speech criticizing the courts for causing an increase in the
crime rate, also lashed out at
a tendency to blame [the police] . . . for a high incidence
of crime instead of recognizing that there are many crime
causes, such as slum conditions, narcotic addiction, lack of
parental responsibility, unemployment, cultural inequalities,
and other social factors over which the police have no in-
fluence or control. 77
The courts, of course, have no control over these factors either.
Moreover, irresponsible charges that the Supreme Court's de-
cisions are "causing violence" do a distinct disservice, not only
to the Supreme Court, but to the nation as a whole. 7s For, in addi-
tion to contributing to the already mounting lack of respect for
the agencies charged with law enforcement, it diverts attention
away from the real causes of crime and violence. Instead of
forcing us to focus on the hard problems and to find solutions
to them, such criticism, by placing the blame for crime on the
Court, offers us an easy and vulnerable scapegoat, allowing us
to delude ourselves that the solution of the crime problem is
easy and cost-free.
To the extent that potential criminals seem encouraged to
engage in lawlessness out of a belief that the courts are "soft"
and that they will be able to escape punishment if they are
480 Report of the Task Force on Law and Law Enforcement
caught, the real blame should be directed not at the courts but
to those critics who generate massive publicity campaigns
against the courts, exaggerating and misrepresenting court
decisions.
Yet the general charge that the scales of justice seem unduly
weighted in favor of the accused does, of course, raise a valid
point that guilty men are going free because of procedural
safeguards that hamstring the prosecution. The confession cases
decided on appeal particularly yield to this interpretation. In
those cases, a confession, the truth of which is not denied, is
held inadmissable at trial, and the conviction is reversed.
But the impact of such decisions on convictions is substan-
tially reduced by the Court's recently adopted practice, as
in Miranda, of applying such rulings prospectively only. Thus,
the court does not empty the jails. Moreover, adherence by the
police, the prosecutor, and the lower courts to the Court's rulings
should avoid this problem in the future. Further, it is incorrect
to say that defendants are "turned loose" when their convictions
are reversed by the courts. A reversal means that the defendant
is to be tried again, absent the error committed the first time.
Justice Mosk's study found that more than 95 percent of these
retrials in California result in proper convictions. 79 Few, indeed,
are those defendants who are "turned loose" on society, for
fewer than those criminals who roam the streets because of
lack of crime laboratories, part-time prosecutors, lack of cor-
rectional facilities, and a general unwillingness to attack the
root causes of crime.
That criminal procedure favors the accused is a charge that
cannot be accepted at face value. Anyone who has participated
in or observed the administration of justice in the streets, at
police stations, in prosecutors' offices, and in the trial courts must
see that, in the vast majority of cases, the scales of justice are
still far from weighted in favor of the accused.
"VOLUNTARINESS" AND POLICE INTERROGATION
One of the most curious aspects of the criticism of the Miranda
rules is that most of the critics do not challenge the right of the
accused to remain silent ; the challenge concerns only the wisdom
of advising him that he has such a right.
The principal argument against Miranda, therefore, centers
upon the fear that if the accused is informed of his rights, he
will exercise them. On the other hand, if the interrogator does
not inform his "subject" that he need not respond, then he may
respond ; the response in that instance is termed "voluntary," the
letter of the law has been complied with (no "compulsion" hav-
The Constitution and Rights of the Accused 481
ing been applied), and consciences are therefore clear. 80 But
the argument will not work.
"Voluntariness" connotes at least that the person responding
has done so as a result of free will, i.e., that he has willed to speak
rather than to keep silent. The argument of Miranda's critics,
however, presupposes that knowledge of the choice available will
be kept from the accused. A choice between concealed alterna-
tives, however, is no choice at all. 81 The due process concept of
notice 82 reflects this principle, as do the requirements that the
defendant be given a copy of the indictment before he is asked
to plead, 83 and that the court refuse to accept a guilty or nolo
contenders plea without "determining that the plea is made vol-
untarily with understanding of the nature of the charge and the
consequences of the plea." 84 The defendant must be made aware
of his rights. Surely this prerequisite determines whether or not
he has chosen to forego them " voluntarily," if that term is to
have any meaning whatever.
The meaning of "voluntariness" broadens considerably in the
context of police interrogation. As the Court pointed out in
Miranda, there is "a gap in our knowledge as to what in fact
goes on in interrogation rooms." 85 Certainly this gap exists
in large measure because of the secrecy in which the interroga-
tion occurs. 86 Secrecy here means that "police station questioning
... is governed only by the self-imposed restraint of the police" 87
and creates the suspicion of abuse. Since usually there are neither
independent witnesses nor a record of the interrogation, 88 a
charge of coercion produces a swearing contest between the police
and the defendant in which the police are usually believed. 89
Secret interrogation which may result in the trial being an
empty formality is, of course, inconsistent with our basic belief
that proceedings in which a man's life or liberty is at stake should
be open and observable. 00 To renounce that belief would consti-
tute a fairly clear admission that we as a nation are "[u]nskill'd
to judge the future by the past." 91 In 1931 the Wickersham Re-
port 92 uncovered prevalent use of violence and the "third degree"
in interrogating suspects, usually between arrest and preliminary
hearing. In 1961 the Commission on Civil Rights reported that
some policemen still resort to physical force to obtain confes-
sions. 93 And while the President's Commission on Law Enforce-
ment and Administration of Justice reported in 1967 that "today
the third degree is almost non-existent," 94 the Court in Miranda
cited a number of recent instances of physical abuse. 95
Whether police officers in fact stop the elevators between the
floors of the jail to "work over" "uncooperative" suspects 9 ' 5 is
perhaps less important, however, than whether a substantial
portion of the citizenry believes that such things happen. A sus-
pect from the lowest social and economic groups in our society 97
482 Report of the Task Force on Law and Law Enforcement
may forego his rights (if he is aware of them which is what
Miranda is all about) in the face of police pressure. Moreover,
such belief inevitably leads to distrust and disrespect of law en-
forcement officials. As the President's Commission on Law En-
forcement and Administration of Justice has pointed out:
[F]air treatment of every individual fair in fact and also
perceived to be fair by those affected is an essential element
of justice and a principal objective of the American crim-
inal justice system.'-' 8
Fairness in our system, and the appearance of fairness, is essen-
tial if the system is to "win the respect and cooperation of all
citizens," OJ) without which "crime cannot be controlled." 10()
The possibility of physical abuse is not, however, the major
focus of concern. As the Court noted in Miranda, "the modern
practice of in-custody interrogation is psychologically rather
than physically oriented." 1()1 It cited modern police manuals
which describe in detail advantageous interrogation settings and
outline proven strategems of psychological coercion. The pro-
cedures recommended by the manuals have been summarized
as follows:
Inbau and Reid describe in considerable detail sixteen
tactics which they believe may be used with some success.
The sixteen tactics are easily reduceable to seven themes,
four of which appeal primarily to the mind, and the others
appeal primarily to the emotions of the suspect. First the
interrogator communicates by word and gesture that he
strongly believes the suspect is guilty. The next tactic is
to provide "factual" evidence in support of this belief. The
interrogator should proceed by pointing to circumstantial
evidence, like pretending to know much more about the sus-
pect than he in fact does, by suggesting that someone else
such as an accomplice has implicated the defendant, by
having another policeman pose as a witness to the crime,
and by commenting on the incriminating significance of the
suspect's psycho-physical behavior, such as pulsation of his
carotid artery, excessive movement of his Adam's apple,
foot wiggling, or "downcast" eyes. . . . The third strategy
is to redefine the crime, sometimes exaggerating the charges
and at other times minimising their moral significance.
In the latter case, the suspect should be told he acted as
any normal man would have under the circumstances.
The three emotional appeals may be used independently
or in conjunction with the rational appeals. In his effort to
elicit a confession the interrogator is advised to show sym-
pathy, friendliness, and respect, and to flatter the suspect.
The Constitution and Rights of the Accused 483
Second, if these positive approaches do not work, the inter-
rogator ought to display hostility. One procedure is for two
interrogators, apportioning the sympathetic and hostile
roles between themselves, to enact the psycho-drama vari-
ously known as the "Mutt and Jeff," "carrot and whip," and
the "hot and cold" technique. 102
The reliance by the majority of the Court upon the descriptions
contained in police manuals was severely criticized by the dis-
senters :
Insofar as appears from the Court's opinion, it has not
examined a single transcript of any police interrogation.
. . . Judged by any of the standards for empirical investiga-
tion utilized in the social sciences the factual basis for the
Court's premise is patently inadequate. 10 ^
But the dissenters ignored the secrecy in which the interrogation
normally occurs (although they acknowledged the fact of such
secrecy) and the fact that, unlike judicial hearings, no court
reporter is present at the vast majority of interrogations 104 until
invited by the police to record the "deposition" of the accused
after he has confessed. 105
More to the point is the suggestion made by the dissenters that
"the type of sustained interrogation described by the Court"
does not occur in every case, perhaps not even in a majority of
cases. 1()6 This suggestion is borne out by some of the empirical
studies of police practices, 107 but we know neither what per-
centage of the "confused and sporadic" questioning produces
admissions nor what impact the Miranda warnings may be ex-
pected to have upon them. 108
The question remains whether or not the use of the tactics
described in the manuals is in fact "inherently coercive." In the
context of any other area of the law, there would be no doubt of
the answer to that question. As one scholar has pointed out:
We have been ready to let a man sign his life away under
circumstances in which we would not recognize his convey-
ance of a subdivided lot. 10J)
One sociologist has recently observed that "the Court's finding
of inherent coercion even in ethical interrogations seems com-
pletely justified by the literature of social psychology." no Some
evidence suggests that the type of coercion advocated by the
police manuals may be more dangerous to society than openly
avowed compulsion, such as utilizing the contempt sanction to
compel a defendant to testify in open court. Although the authors
of the most widely circulated police manual state, "we know of
not one case in which any of the interrogation methods we
484 Report of the Task Force on Law and Law Enforcement
describe has elicited a confession from an innocent suspect," m
others understand that
[s]ocial-psychological data suggest that a suspect even an
innocent suspect while isolated physically and socially
from the groups which usually validate his ideas may well
change his stated beliefs in the face of contradictory asser-
tions of "fact," emotional inducements, and the possibility
of gaining social acceptance. 112
Several cases have recently come to light in which a false con-
fession was obtained without physical abuse. 113 In the wake of
one of these cases, a member of the prosecutor's staff admitted
that the defendant, a Negro of limited intelligence, had been
coerced, apparently by methods similar to those described in the
manuals. As a prosecutor noted, "call it what you want brain-
washing, hypnosis, fright. They (the police) made him give an
untrue confession." 114 And a member of the police department
admitted in the aftermath of the same case, "I hate to say this,
but I'm sure that sometime in history we've sent innocent men
to their death by an unjust verdict." 115
EQUAL PROTECTION IN THE STATION HOUSE
Another consideration underlying Miranda is the question of
equal protection of the laws. The President's Commission on Law
Enforcement and Administration of Justice has constructed a
composite portrait of the offender who ultimately ends up in
prison. They have found that he is "likely to be a member of
the lowest social and economic groups in the country, poorly
educated and perhaps unemployed, unmarried, reared in a broken
home, and to have a prior criminal record." 11(i
Absent the requirements laid down in Miranda, the minority
of arrestees who can afford counsel, who come from less educa-
tionally and culturally disadvantaged backgrounds or who are
sophisticated in the ways of the station house, would enjoy
special privileges. The man who can afford counsel, the man who
has ties with family or friends who will obtain counsel for him,
the man whose cultural and educational background or status
in society have placed him in a position, not only to know his
rights, but to demand them confidently in the face of police
importunings, and, perhaps, the man who has connections with
organized crime: this kind of man has substantial advantages
over the more typical, "profile arrestee, 117 who thus is denied
"equal protection of the laws." lls
It has been suggested that perhaps equal protection
does not demand cessation of proper police practices that
The Constitution and Rights of the Accused 485
are valuable, perhaps essential, to the investigation and
punishment of crime, simply because some segments of
the population do not know they are not obliged to cooperate
whereas others do. 119
It is true that equality is an ideal that cannot be achieved in
any absolute sense. On the one hand, we face the need for truth
that may be suppressed to the extent that we pose obstacles to
the freedom of the police to conduct investigations in the manner
most appropriate to the circumstances. On the other hand, we
must have not only fairness and justice, but also the "appearance
of justice," 12 as it is perceived by society, particularly by those
segments of society which in the main produce the offender. We
must decide whether in the long run we are more likely to achieve
the goals of our system of criminal justice by striving diligently
for the truth in particular cases, recognizing that it means tak-
ing advantage of ignorance, with the risk of creating more alien-
ation in large segments of society and more distrust and dis-
respect for enforcement agencies thought to be enforcing a
"rich man's law" or whether those goals are more likely to be
achieved where the poor and ignorant suspect is put on a some-
what more equal footing with the affluent or professional sus-
pect, at the cost of suppressing the truth in particular cases.
Since no system can operate effectively without substantial sup-
port from the citizenry, it would seem that the balance lies in
the direction of the Miranda decision. 121
THE PRIVILEGE AGAINST SELF-INCRIMINATION:
BEGINNING OF A REEXAMINATION
The values implicit in the privilege against self-incrimination,
it would seem, are worth preserving. Recently, however, several
noted scholars and jurists have asked for a reexamination of the
privilege itself in light of the increasing social cost of crime. 122
Jurists like Chief Justice Roger J. Traynor of the California
Supreme Court, 123 Justice Walter Schaefer of the Illinois Su-
preme Court, 124 and most trenchantly Judge Henry Friendly
of the U.S. Court of Appeals for the Second Circuit 125 have re-
cently questioned whether the privilege against self-incrimina-
tion deserves preservation. Seven members of the President's
Commission on Law Enforcement and Administration of Justice
have joined in the call for reappraisal. 126
The Fifth Amendment privilege protects a witness in a civil
trial 127 or a legislative hearing; 128 it prohibits the compelled
production of incriminating documents in most circumstances ; 129
it dictates that testimony cannot be compelled in one jurisdiction
if it could be used in a criminal prosecution in another jurisdic-
486 Report of the Task Force on Law and Law Enforcement
tion ; 13 it interdicts required registration in certain situa-
tions ; 131 it forbids use of the contempt sanction to require a
defendant to testify at the trial of any criminal case ; 132 it re-
quires exclusion from evidence of statements obtained before
trial under circumstances deemed coercive; 138 it forbids com-
pulsory testimony before a grand jury unless the witness is
granted immunity from prosecution on the basis of his testi-
mony; 184 it prohibits comment by the court or the prosecution
upon the defendant's failure to take the stand; 1 -' 55 and it pro-
hibits the use of an earlier claim of privilege to impeach a de-
fendant's credibility when he chooses to testify at the trial. 136
In short, as the Court has viewed it, the privilege is "as broad as
the mischief against which it seeks to guard." 137
Critics of the privilege suggest that this "mischief" has never
been satisfactorily denned, however. As Judge Friendly notes,
our attempts to justify the privilege have largely been "bene-
dictions" upon it rather than articulations of its premises. 138 The
friends of the privilege have been more concerned to celebrate
it in Fourth-of-July rhetoric than to explain the policies upon
which it is grounded. That the privilege is "one of the great land-
marks in man's struggle to make himself civilized," 13!) or that
it is one of the essential "principles of free government" 14 tells
us, as Judge Friendly observes, "almost everything, except
why," 141 particularly since there are a number of "civilized"
men who live under "free governments" where the privilege
either does not exist at all or exists in only a very narrow form. 142
Justice Frankfurter, in a famous dictum, remarked that "the
privilege against self-incrimination is a specific provision of
which it is peculiarly true that 'a page of history is worth a
volume of logic.' " 143 The efforts of Professor Leonard W. Levy
have made the outlines of that history clear in his recent book,
Origins of the Fifth Amendment. 144 As a preface to our discus-
sion of the policies supporting the privilege, we take a short
excursion into Fifth Amendment origins.
* * *
The privilege, it seems, arose in response to the use of the
oath ex officio, a procedure which was introduced into canonical
courts by the Fourth Lateran Council in the year of Magna
Carta :
The oath itself, which was in part a sworn statement
to give true answers to whatever questions might be asked,
was objectionable because it was taken in ignorance by the
accused, that is, without his first having been formally
charged with the accusation against him or having been
told the identity of his accusers or the nature of the evi-
dence against him. Following the administration of the oath,
The Constitution and Rights of the Accused 487
the accused, still in ignorance, was required to answer a
series of interrogatories whose purpose was to extract a
confession. 14r>
The first use of the new oath procedure in England, by Bishop
Robert Grosseteste in 1246, produced such an outcry that Henry
III was compelled to interfere and ultimately to summon the
Bishop before the King's Council for contempt. 14(i In the reign
of Edward II, in the course of one of the recurring jurisdictional
disputes between church and state, Parliament passed, some-
time prior to 1326, the statute Prohibitio Formata de Statuto
Articuli Cleri, 147 which among other things prohibited the exam-
ination of laymen under oath before the church courts in other
than matrimonial or testamentary causes. 148 Periodically there-
after, outbursts against the use of the oath procedure occurred,
indicating that the attempts by the secular agencies to suppress
it did not succeed. 149
Concerted and persistent opposition to the ex officio procedure
began with its use in the suppression first of heresy and later
of religious non-conformity. From the rise of Lollardry in the
fourteenth century, resulting in the passage of the statute de
Heretico Comburendo in 1401, lr>() through the prosecution, first
of Protestants and later of Catholics by Henry VIII, opposition
began to mount. The bloody suppression of Protestants under
Mary, the martyrdom of Catholics and the attempts to extract
conformity from Puritans under Elizabeth and the first two
Stuarts, led to heightened opposition to the oath, culminating
in its final abolition by Parliament in 1641. 151 During the Eliza-
bethan and Stuart periods, the oath was the principal procedural
device used by the Court of High Commission, the court charged
with enforcing conformity with the established church's doc-
trine, and it was used at times by the Star Chamber. 152
Justification for the use of the oath procedure was the inevitable
appeal to necessity. Sir Thomas More argued :
If the ex officio oath procedure were abandoned, . . . and
no suspect could be examined unless someone openly ac-
cused him and made himself a party against him, "the
stretys were likely to swarme full of heretykes" before any
were ever accused. 1
Archbishop Whitgift, Archbishop of Canterbury and head
of the High Commission under Elizabeth, in an elaborate justi-
fication of the procedure, began with this argument:
sectaries "spreade their poison in secrete," making it nearly
impossible to produce witnesses against them; he ended
with complaint that the High Commission would be taxed
488 Report of the Task Force on Law and Law Enforcement
with too burdensome a task to get witnesses even when it
might be possible. 154
And James I asserted:
In contrast to the practice of other courts which might pun-
ish only deeds, . . . the eccesiastical courts had to examine
"Fame and Scandals." For the detection of the offender,
especially when the crime was grave and either suspicion
or "public fame" existed, the oath was necessary. 155
But opposition grew. Sir Thomas More, who as Chancellor
compelled heretics to take the oath ex officio (the penalty for
heresy was the stake), found the tables turned when he was
charged with treason for refusing to recognize the King as
supreme head of the English church. When presented with an
oath ex officio at his examination on that charge (the penalty
for which was beheading), he answered:
it were a very harde thinge to compell me to saye either pre-
cisely with it [the Act of Supremacy] againste my con-
science to the losse of my soule, or precisely againste it to
the destruction of my bodye. 156
Sir Thomas Tresham spelled out the dilemma in his testimony
before the Star Chamber in 1580 on a charge of harbouring the
Jesuit, Edmond Campion:
For, if I sweare falselie, I am perjured; if by my othe I
accuse myselfe, I am condemned to the penaltie of the law
... If I sweare trulie, then I laye myself wyde open to per-
jurie, because Mr. Campion hath oppositely accused me in
the affirmatyve. 157
The dilemma in which such persons found themselves came
gradually to be recognized as the "cruel trilemma" of contempt,
perjury, or conviction:
He could refuse the oath and rot in jail, or having taken it,
refuse to answer and meet the same fate. If he took the
oath and lied, he committed the unpardonable and cardinal
sin of perjury which was simply not an option for a religious
man ... If he took the oath and told the truth, he foreswore
himself, supplying his enemy with legal proof of his guilt,
and, what was equally appalling, he forsook his co-religion-
ists, necessarily betraying them. 158
When policy arguments did not prevail against the oath, there
was the appeal to authority, including frequent reference to the
maxim nemo tenetur seipsum prodere, or "no one is bound to pro-
duce against himself." 15!) Magna Carta was also cited in opposi-
The Constitution and Rights of the Accused 489
tion to the ex officio procedure by Robert Beale, who read into
the prohibition in Chapter 28 of Magna Carta, against bailiffs
putting the accused to his oath without witnesses, a prohibition
against the ex officio oath. 160 This first use of Magna Carta as a
"talismanic symbol of freedom" became an article of faith to
those subjected to the oath procedure in ensuing years. 101 This
history makes clear that the privilege was originally:
associated . . . with guilt for crimes of conscience, of belief,
and of association. In the broadest sense it was a protection
... of freedom of expression, of political liberty, or the
right to worship as one pleased. 162
Opposition to the oath procedure, however, and the attendant
demand for the right not to accuse oneself, was not solely a de-
vice for attacking the substantive law being enforced by that pro-
cedure, for, as Professor Levy points out, the opponents were
convinced that "an oath that compelled self-incrimination was
[itself] both evil and violative of common-law procedures." 163
Finally, Levy lays to rest the popularly-held notion that the de-
velopment of the privilege was largely in response to the use
of the rack, the thumb-screw, and the sizzling iron. 164 Torture
was illegal at common law, and was not utilized by the common
law courts, nor the High Commission, nor the Star Chamber. 165
The humanity of the English judge was above all marked by
his abhorrence of torture ... It was never employed to ex-
tort a confession or to force the prisoner to incriminate
himself in any manner. 160
After the abolition, in 1641, of the Star Chamber and the High
Commission, and with them the oath ex officio 1 the arguments
against the oath began to be used against self-incriminatory
procedures in Parliament and in the common law courts:
They employed no oath, of course, yet in the preliminary
examination prior to indictment and arraignment, it was
still ordinary practice to press a suspect to confess his guilt ;
and in the prosecution of an accused person before a jury,
his interrogation was still the focal point of the trial, the
objective to trap him into damaging admissions. 168
Even after the formal establishment of the privilege in the
common law courts, which certainly had occurred by 1660, 16!)
suspects continued to be examined by the magistrate at the pre-
liminary hearing, the purpose of which "was to wring out of
him a confession of his guilt, unsworn, or enough damaging
testimony to put him on trial for the crime." Such examinations
were conducted in secret and were "characterized by bully-
ing." "
490 Report of the Task Force on Law and Law Enforcement
After 1660, the privilege continued to grow in scope, to the
protection of witnesses 171 to the prohibition of compulsion to
bring infamy upon oneself, 17 - to civil cases where the testimony
could be used against the witness in a criminal case, to parlia-
mentary proceedings, 174 and to the compelled production of in-
criminating papers and documents. 175 Finally, Professor Levy
concludes, there is an "indissoluble nexus" between the priv-
ilege and the rule excluding involuntary confessions. 170 Despite
considerable discussion, 177 whether or not Wigmore was correct
when he claimed "no connection" between the two, 178 the evi-
dence to the contrary offered by Professor Levy seriously under-
mines the foundation for Wigmore's conclusion. 17 "
Of course "it would be ludicrous to attempt to fix the proper
scope of the privilege in light of what was appropriate under
the Stuarts or Cromwell," lso but history warns us of the impli-
cations of abandoning it or diluting it.
In light of the foregoing history, it should be agreed that
determining what the "whole complex of values" is which the
privilege today represents, 1 S1 is not, as Judge Friendly points
out, 182 as easy as it might seem. Justice Goldberg, however, at-
tempted to set forth a complete catalogue of the policies behind
the privilege in Murphy v. Waterfront Commission :
It reflects many of our fundamental values and most noble
aspirations: (1) our unwillingness to subject those sus-
pected of crime to the cruel trilemma of self-accusation,
perjury or contempt; (2) our preference for an accusator-
ial rather than an inquisitorial system of criminal justice;
(3) our fear that self -incriminating statements will be
elicited by inhumane treatment and abuses; (4) our sense
of fair play which dictates "a fair state-individual balance
by requiring the government to leave the individual alone
until good cause is shown for disturbing him and by re-
quiring the government in its contest with the individual
to shoulder the entire load;" (5) our respect for the in-
violability of the human personality and of the right of
each individual "to a private enclave where he may lead
a private life;" (6) our distrust of self -deprecatory state-
ments; (7) and our realization that the privilege, while
sometimes "a shelter to the guilty," is often 'a protection
to the innocent/ ls:{
Number (2), the "accusatorial-inquisitorial" dichotomy can
be dismissed out of hand ; neither of those terms is self-defining
and any argument for the privilege based upon that distinction
is necessarily circular. Use of the "inquisitorial" terminology
The Constitution and Rights of the Accused 491
conjures up images of the Star Chamber under Charles I and the
Inquisition of Torquemada, which elicits emotional rather than
rational support for the privilege.
Judge Friendly would also reject item (7), "protection of
the innocent," on the ground that "[n]o proof . . . has ever been
offered" to support that assertion. He argues that, in light of
the existence of the common law rule against coerced confessions,
"its occasional effect in protecting the innocent" is out-weighed
by the fact that it "so much more often shelters the guilty and
even harms the innocent" (by eliminating the opportunity for
an innocent defendant to exculpate himself by compelling the
person guilty of the crime to testify). 1 * 4
Under the rules of evidence presently in force in most Amer-
ican jurisdictions, however, evidence of the accused's previous
convictions for crimes can be brought to the jury's attention once
he takes the witness stand, for the avowed purpose of showing
that he is not a person worthy of belief. lsr> Although in theory
such use of the defendant's criminal record may be justified, in
fact to require a jury to consider it on the issue of credibility
alone, and not on the issue of guilt or innocence, is to ask the
jury to perform mental gymnastics beyond the capabilities of
most mortals. The inevitable temptation is to conclude that the
accused must be guilty of the crime charged on the basis of his
record of prior crimes. So long as the defendant who takes the
witness stand does so with the certainty of having his prior
crimes thus disclosed, the privilege serves the purpose of pro-
tecting those who are innocent of the crime charged but who do
not have an unblemished past.
Moreover, it is worth remembering that "a substantial num-
ber of defendants are innocent, and that most of these are un-
educated, unfortunate persons, frightened by their predicament
no match for the prosecutor or for the occasional sharp ques-
tion from the judge . . ." 18G This description fits the findings of
the Commission on Law Enforcement and Administration of
Justice. 187 To require such a person to take the witness stand
would be to subject him to the risk of conviction on the basis
of the negative impression his manner, demeanor, and form of
testimony make upon the jury even though he may in fact be
innocent.
The dangers in these two situations the defendant with a
record and the defendant whose demeanor is poor are the twin
foundations of the Supreme Court's decision in Griffi,n v. Cali-
fornia, forbidding comment by the judge or the prosecutor
on the failure of the accused to take the stand, and they remain
significant points of policy underlying the privilege.
Item (5), "private enclave," Judge Friendly says, does not
justify the privilege to the extent that inquiries into political,
492 Report of the Task Force on Law and Law Enforcement
social and religious belief, speech or association are barred by
the First Amendment or other protective rules. 189 On the other
hand, Judge Friendly concedes the force of item (3), "our fear
that self-incriminating statements will be elicited by inhumane
treatment and abuses," in the context of secret station house in-
terrogation. 190 He also apparently concedes item (6), "our dis-
trust of self-deprecatory statements," although he does not
accord it any significant weight. 191 Yet that confession may
simply be "an act of self-punishment or self-abnegation" by an
innocent man, rather than a disclosure of the truth by one im-
pelled to acknowledge his misdeeds. 192
This leaves item (1), "the cruel trilemma," and item (4),
"fair individual-state balance," or the "whole load" argument.
Judge Friendly dismisses the latter on the ground that it "is
largely conclusory as stated." 193 He rejects the philosophical
argument for the government shouldering the entire load based
on a social contract theory under which the state has no right
to require the "sovereign individual" to give up his right of
self-defense. He recognizes that most people "wish the defendant
to have some advantages," but argues that "even if we knew
just where we want the balance set," it is "hard to reason from
this to any particular application of the privilege." 194 He points
out that the state must disclose exculpatory evidence, may not
rely on "inculpatory evidence it has any reason to disbelieve,"
increasingly "is under the burden of discovery without a corre-
sponding right against it," and cannot appeal in most cases
whereas the defendant can. 195 Against these relative advan-
tages to the accused, Judge Friendly notes:
[ J] uries doubtless tend to believe that most indicted persons
are guilty, no matter how strongly they are warned other-
wise; and the state has far greater resources for investiga-
tion and, at least until recently, better lawyers. 196
Weighed against the de facto presumption of guilt which the
accused faces and the disproportionate resources enjoyed by the
state, the "advantages" to the accused, with the possible excep-
tion of the unilateral right of appeal, seem paltry at best. Dis-
covery is still far more limited in criminal than in civil cases.
Nonreliance on questionable evidence depends principally upon
the good faith of the prosecutor. Outside the federal system, the
selection of prosecutors is, almost uniformly, overtly political,
and even in the federal system politics does not entirely absent
itself from the office. At least as long as the office of prosecutor
is viewed as a step up the political ladder, we cannot expect the
occupant to view favorably rules requiring him to lessen his ad-
vantage over the accused and to act against his official and per-
sonal interest.
The Constitution and Rights of the Accused 493
Judge Friendly suggests that other compensating advantages
might be given the accused in exchange for a limitation on his
privilege, such as greater discovery, more stringent requirements
for corroboration of accomplice testimony ; or modification of the
"other crimes" doctrine of impeachment, 107 but he does not in-
clude any of these in his draft constitutional amendment (see
infra), and we do not know whether a "fair balance" would be
struck between state and individual if any or all were substituted
for a narrower privilege.
As to item (1), "the cruel trilemma," Judge Friendly adopts
Professor Mayers' suggestion that
to require a mother to testify against her own son on trial
for his life is surely a greater cruelty than requiring an
ordinary witness to disclose some mayhap minor infraction
of a penal regulation !" 198
While most reasonable men could accept the proposition as
stated, it may be reasonable to conclude that it suggests the need
for a reappraisal of the rule which would require a mother to
undergo such torment (even in the few cases where a prosecutor
has been callous enough to call a mother as a witness) as it is to
conclude that it supports repeal of the privilege. Moreover, in
comparing the mother's suffering to the "ordinary witness," the
argument presents the privilege in a context where the interest
of the party being protected is not very great, and the interest
of society in not having him protected and the benefits to be
gained by society from its removal are not very great either.
Judge Friendly concedes that "almost no one would favor con-
fining a man to jail until he takes the stand to testify." 199 In-
deed, he would not directly compel, through the use of any sanc-
tion, a defendant to take the stand at the trial. 200 Instead, he
suggests the use of the comment-at-trial sanction (see infra) to
induce the accused to testify at a pre-trial hearing. If this were
done, the "cruelty" argument would, in his words, be "some-
what but not entirely diluted." 201
JUDGE FRIENDLY'S AMENDMENT
In questioning the continuing raison d'etre of the privilege
against self-incrimination, Judge Friendly has proposed a six-
clause amendment to the Constitution, fully recognizing the
undesirability of interjecting so much detail into the Constitu-
tion but concluding that the changes he believes desirable could
not otherwise be accomplished. He also recognizes that there
may be problems of draftsmanship and he reserves the right
"to change [his] mind about some or all of it." 202 Clause (2),
494 Report of the Task Force on Law and Law Enforcement
and possibly clause (1), would modify the present interpreations
of the privilege which affect police interrogation:
The clause of the fifth amendment to the Constitution of
the United States, "nor shall be compelled in any crim-
inal case to be a witness against himself," shall not be con-
strued to prohibit:
(1) Interrogating any person or requesting him to fur-
nish goods or chattels, including books, papers and other
writings, without warning that he is not obligated to com-
ply, unless such person has been taken into custody because
of it, or has been charged with a crime to w r hich the interro-
gation or request relates.
(2) Comment by the judge at any criminal trial on pre-
vious refusal by the defendant to answer inquiries relevant
to the crime before a grand jury or similar investigating
body, or before a judicial officer charged with the duty of
presiding over his interrogation, provided that he shall have
been afforded the assistance of counsel when so questioned
and shall have then been warned that he need not answ r er ;
that if he does answer, his answer may be used against
him in court; and that if he does not answer, the judge may
comment on his refusal. L>o:>>
Judge Friendly would oppose the adoption of his draft amend-
ment if it would dilute in any way our political and religious
freedom. Indeed, he argues that the privilege is not broad enough
to provide the desired protections in this area; that "a person's
political and religious beliefs and associations and lawful acts
to advance them are none of the government's business save in
the rare case where these are truly relevant to an issue before
a judicial or administrative tribunal" ; and that "the Supreme
Court will and should interpret the first amendment to give
this protection." - Ol If thought necessary he would add language
to the draft amendment expressly excluding from its scope
matters pertaining to "religious, political or social beliefs or
associations." -"" Thus, Judge Friendly eliminates at the outset
the objection that in limiting the privilege we are ignoring the
historical experience which brought it into existence.
The impact of Judge Friendly's proposed modifications of the
privilege in the area of police interrogation appear upon close
inspection to be fairly slight. For analysis, the persons affected
may be broken down into several groups.
Of those whose cases ultimately go to trial, a large number
testify voluntarily anyway, 82 percent according to one study
of 1,143 cases, and 91 percent of those without prior records.- ' 8
The threat of comment by the court at the trial would seem to
pose a relatively small threat to such persons when counterbal-
The Constitution and Rights of the Accused 495
anced by the possibility that, if the accused does not speak prior
to his trial, he may be in a better bargaining position for avoiding
trial, and that if he does his pretrial statements may be used to
impeach his testimony at the trial. Indeed, it is hard to see what
inference could be drawn from his failure to testify before trial.
The inference which is drawn from failure to testify at trial
is that, since the defendant has made no attempt to explain the
incriminating evidence presented by the prosecution, he must
be unable to exculpate himself. But it is difficult to see how
that inference can be drawn from failure to testify before trial
when the defendant offsets that failure by taking the stand to
testify in the presence of the jury.
It would seem that, in most cases, if the accused persuades
the jury with his explanation, comment upon his earlier failure
would not dissuade them ; if he fails to persuade them, such com-
ment would not really matter. There mav be some few. very clo*e
cases where comment upon his refusal to testify earlier might
make a difference in the verdict. But, in order for the possibility
of comment at the trial to induce the accused to testify at the
pre-trial hearing, the goal principally sought in proposing the
amendment, 207 consequences adverse to him must be reasonably
predictable by the accused, or by his lawyer. Since the probabili-
ties are great for the defendant who testifies at trial that com-
ment by the court will have no impact upon the outcome of the
trial, it seems unlikely that the well-advised defendant would
elect to assist the prosecution in preparing its case against him.
The guilty defendant who does not testify at trial, or who at
the time of the pretrial examination has not decided whether to
testify, faces a somewhat similar choice. If he does submit to
examination, he not only runs the risk of aiding the prosecution
to make a case against him, thereby either lessening his chances
for a favorable verdict or at least weakening his bargaining posi-
tion in dickering for a compromise plea, but perhaps more sig-
nificantly he runs the risk of having his examination read to the
to the jury at the trial. It is unclear just how Judge Friendly
proposes to allow the pretrial statments to be used at trial, but if
it is done in the manner depositions are frequently read into the
record in a civil case now, and as testimony from a prior trial is
read in a criminal case, 208 the risk he runs does not depend solely
upon the substance of his testimony. Picture the detective, or as-
sistant prosecutor, sitting in the witness chair, reading the de-
fendant's answers to the prosecutor's questions with perfect into-
nation, emphasis here, hesitation there; just the right facial
expressions, here of remorse, there of conscious falsity; just the
way the jury would expect a guilty, prevaricating, perjuring
criminal to sound and act.
496 Report of the Task Force on Law and Law Enforcement
Moreover, the defendant who hestitates to take the stand at
trial because of his prior criminal record faces the possibility
that if he testifies at a pretrial hearing, the prosecutor will bring
out his record during the pretrial examination to impeach his
testimony. Presumably, under Judge Friendly's draft amend-
ment, the prosecutor could have the impeachment portion of his
pre-trial statement read to the jury as well as the substantive
portion. On the other hand, the timorous, uneducated defendant's
possible "poor performance will not be seen by the ultimate triers
of fact," 209 which may offset to some extent the disadvantage
which the poor or illiterate or frightened defendant usually faces
when he takes the stand. The performance by the person who
reads the accuser's testimony into the record may, however, do
a better job of convincing the jury of his incredibility than would
his own appearance on the witness stand.
The guilty defendant who does not plan to testify at trial, by
hypothesis, has already decided that he is willing to run the risk
that the jury will draw the inference of guilt from his failure to
stand up and deny the charges, for "the jury draws the inference
anyway [i.e., without comment upon his failure to testify], even
some think particularly when instructed not to ; and the de-
fendant's lawyer knows or should know this." 21 Is the added
risk of specific comment upon his previous failure to testify sig-
nificant enough to tilt the scale in favor of his testifying at a
time when to do so may materially aid the prosecution in pre-
paring its case against him? The answer would seem affirmative
in only the closest of cases.
The choices that face the innocent accused do not differ signif-
icantly from those which face his guilty counterpart. Lest his tes-
timony before the grand jury or at a pretrial hearing persuade
the jury not to indict or the prosecutor to dismiss the case, he
presently has the option in most cases of testifying before the
grand jury and of presenting his evidence to the prosecutor either
informally or at the preliminary hearing.
The defendant who now pleads guilty to the offense charged
would presumably be unaffected by the proposed change. The
effect upon the defendant now able to bargain for the right to
plead to a lesser offense is more difficult to predict, although given
the weak nature of the sanction, it seems probable that he would,
like the guilty defendant who does not plan to testify at the trial,
choose not to testify prior to trial for fear that he would weaken
his bargaining position by helping the prosecution to fill the gaps
in its case out of his own mouth.
Judge Friendly seems to recognize some of the problems point-
ed out above, for he notes :
[I]n the case of the guilty suspect against whom there is
The Constitution and Rights of the Accused 497
is insufficient other evidence for a prosecution, the lawyer
will still be bound to advise silence and since he will not
know how matters stand at the start, he is likely at least
to postpone the decision. 211
This would certainly be true in the situations not alluded to in
the discussion above, those cases where the prosecution cannot
under present conditions obtain enough evidence to indict or,
having obtained an indictment, to prosecute it to trial, or to with-
stand motion to dismiss at the close of its case.
In all of the situations canvassed, the defendant runs the risk
of prosecution for perjury if he chooses to testify at the pretrial
hearing, a risk for which he receives no compensatory benefits
except the negative benefit of not subjecting himself to adverse
comment by the judge. And it is not alone the false-swearing de-
fendant who runs this risk as well, particularly where the prose-
cutor's personal or political interests are involved in the case. 212
The guilty defendant, of course, runs the risk to a much greater
extent, since the natural, probably overbearing temptation will
be for him to forswear rather than convict himself out of his own
mouth. Thus, the defendant who testifies before the grand jury or
magistrate prior to trial, and whose testimony does not comport
with the prosecutor's view of the facts, subjects himself to de
facto double jeopardy. If he is acquitted on the main charge he
still risks conviction for perjury. The defendant who takes the
stand at the trial runs the same risk, but there he at least does
so with the possibility that he may persuade the jury of his inno-
cence, a possibility he does not have at pre-trial. The sanction
of comment at the trial does not seem very likely to induce a
defendant to run such a risk.
Judge Friendly cares particularly about the impact of the priv-
ilege on cases such as kidnapping or espionage where immediate
interrogation might result in the rescue of the victim or the pre-
vention of documents relating to national security from leaving
the country. 213 But the type of information which he seeks to
have elicited from the suspect's mouth would surely not be forth-
coming under pain of comment at trial to any greater extent than
it would under present rules. A pretrial hearing might provide
an opportunity for appeals to the humanity of the kidnapper,
but such appeals can presently be made to him, in the presence
of his lawyer if his statements will be used against him at the
trial, or out of his lawer's presence if the police are willing to
forego using them against him. 214 Naturally, the lawyer will at-
tempt to obtain concessions for his client in exchange for the
information sought, but he has no reason not to continue to do
so under the procedure created by the proposed amendment.
498 Report of the Task Force on Law and Law Enforcement
In the espionage case, plea bargaining would seem to be more
effective than appeals to idealism and, given the national inter-
ests involved, is probably justifiable in such a case. In neither the
kidnapping nor the espionage case is the well-advised suspect
likely to provide the information sought, which would lead to his
certain conviction, because of the relatively mild threat of com-
ment at the trial.
The choices facing the defendant under the draft amendment,
therefore, could hardly be called a "cruel trilemma." In fact, the
sanction suggested proves to be quite weak It does not solve
in any way the hard cases posed by Judge Friendly, such as kid-
napping and espionage, and would likely have impact, if at all,
in only an insubstantial number of closes cases. In short, the
gains to the state which could reasonably be thought to follow
its adoption are minimal.
The other clause of Judge Friendly's draft amendment which
pertains here, clause ( 1 ) , provides for interrogation of, or request-
ing goods, papers, or other tangible items from, any person with-
out warning him of his rights, provided that he has not been
charged with, nor is in custody for, the crime to which the in-
quiry relates. This clause is avowedly designed to overrule and
to prevent extensions of Mathis v. United States, 215 a 5-to-3 deci-
sion in which the Supreme Court held that information obtained
from an uncautioned state prisoner by an Internal Revenue Serv-
ice agent in the couse of a civil investigation could not be used
against the prisoner in a criminal tax proceeding subsequently
begun.
It is not merely the holding of Mathis which concerns Judge
Friendly, but the implications which he fears may flow from it,
i.e., that it may lead to a ruling that any official, non-custodial
questioning for example, by an Internal Revenue agent at the
home or office of the taxpayer violates the fifth amendment.
Perhaps the majority of the Court did get carried too far on the
force of its own logic in Mathis. But, at least at this time, a spe-
cific amendment to the Constitution to overrule that decision and
and its as yet unborn offspring would seem to be a hasty over-
action. The Court has in the past taken a principle to the "limit of
its logic" and later retrenched to a position short of that ex-
treme. 216 (Parenthetically, the Court's recent decision in Orozco
v. Texas, 211 excluding from a trial information obtained from an
uncautioned defendant during nocturnal post-arrest interroga-
tion by four policemen in the defendant's room in a boarding-
house, would not be affected by Judge Friendly's proposed amend-
ment since the defendant was admittedly in custody at the time of
the interrogation.) If warranted, Mathis could easily be "limited
to its facts," facts unlikely to arise with great frequency.
The Constitution and Rights of the Accused 499
SUMMARY AND CONCLUSION
The charge that the Supreme Court's decisions "cause viol-
ence" is unwarranted and, insofar as it diverts our concern
away from the real causes of violence, it is harmful to society.
The charge that the court's decisions materially hamper the
ability of the agencies of the state to solve crimes and to convict
those who commit them, lacks sufficient empirical data upon
which to base that conclusion. We do not as yet know, for exam-
ple, the degree to which confessions are in fact crucial to con-
victions. Nor have we yet had sufficient experience with the rules
laid down in the Court's decisions in this area to judge whether
they will have any significant impact upon the rate of confessions,
given the known propensity of many arrestees to confess even
without interrogation.
More importantly, even assuming that police may be less
effective in securing convictions because of the Supreme Court
rulings, the debate is not ended. As has been pointed out,
each provision of the Bill of Rights was drafted expressly to
make it more difficult to secure convictions. The more rele-
vant question is whether the price we pay for our freedoms
is too great to endure. Before we condemn a significant element
of our heritage to obsolescence, we should ask whether there
is a baby in the bath worth preserving. For it is clear that
we could be of greater assistance to our police by appropriat-
ing the necessary funds to finance crime laboratories, ade-
quate prosecutorial staffs, and proper correctional treatment.
Few indeed, are the criminals "turned loose" on society by
Supreme Court decisions, far fewer than those who are never
caught in the first place.
Miranda v. Arizona, 218 spelled out in detail the procedures for
custodial interrogation if the results are to be used at trial. Al-
though it was a landmark decision, most of its elements were
foreshadowed by the long line of cases which preceded it. To the
extent that the veil of secrecy surrounding station house interro-
gation has been pierced and we have been able to find out what
occurs during custodial interrogation, the methods used by the
police justify the Court's findings of compulsion. Moreover, in the
absence of the Miranda requirement of informing the accused
of his rights, the select few arrestees who are relatively affluent,
educated, or professional criminals would enjoy substantial ad-
vantages over the more typical, poor, uneducated, frightened su-
spect. Not only are such distinctions forbidden by the constitu-
tional prescription of "equal protection of the laws," 219 but also
the perception of such unequal enforcement procedures by those
segments of our population adversely affected produces dis-
500 Report of the Task Force on Law and Law Enforcement
respect for and lack of cooperation with law enforcement agen-
cies.
Also, the values underlying the privilege are by no means
insubstantial. Privilege does serve as a protection to the innocent
in certain circumstances, it does contribute to a fair balance be-
tween the state and the individual, and it avoids forcing the
defendant to choose from among the "cruel trilemma" of con-
tempt, conviction or perjury.
Although Judge Friendly has launched a broad and penetrating
attack upon the privilege and the policies offered in support of
it, his proposed amendments in the area of police interrogation
would change the present law little if at all in practice. Rather
than the sweeping reforms which might have been expected
from the tone of the attack, his proposals turn out on close inspec-
tion to be so minor in result that, at least standing alone, they
probably do not justify tampering with a clause of the Bill of
Rights. The suggested threat of comment at the trial as a sanc-
tion for inducing a defendant to testify at a pretrial hearing ap-
pears to be so weak a threat as to have only a slight effect at best
upon the defendant's exercise of the option not to testify in light
of the grave consequences which might follow if he did testify.
The clause designed to authorize official, non-custodial questioning
of a person not charged with any crime relating to the inquiry
without warning him of his rights is probably premature. We
do not yet know the impact of the one decision which the proposal
would clearly overturn, nor can we reliably predict its expansion
to the point of forbidding any official questioning without warn-
ing the interviewee of his rights.
Although it is true, as Judge Friendly points out, 220 that the
first eight amendments are in form as subject to amendment as
any other part of the Constitution, they have not been modified
since their enactment, except to the extent that they were ex-
tended to the states by the fourteenth amendment. It is, perhaps,
best that they remain unchanged so long as they do not intolerably
impede the clear interests of society. While they retain their
status as untouchables, they may be able to withstand the waves
of mass paranoia with which our nation is occassionally plagued.
Once the psychological barrier to their modification has been
pierced, once they have lost their sacrosanct status, once the emo-
tional rhetoric with which they are celebrated has been dis-
credited, they become that much more vulnerable to further, pos-
sibly ill-considered and sweeping change in wake of the next
"crime crisis," red scare, or witch hunt. As Judge Friendly notes
toward the close of his final lecture, "if our only choices were
repeal or what we now have, I would unhestitatingly choose the
latter." 221 Surely the relatively minor gains to society from the
The Constitution and Rights of the Accused 501
proposed changes in the police interrogation area are not worth
the cost if their adoption would make repeal of what we have any
easier to come to pass.
On the other hand, the place of the privilege in our society is a
question which has only recently been subjected to serious debate.
We admit many substantial gaps in our knowledge of the actual
operation of the privilege. As further empirical studies are
made in these areas and as other students of the privilege contri-
bute their views to the debate, the facts revealed and arguments
posed by them may persuade that retention of the privilege in its
present form is no longer justified and that the necessities of our
environment require us to accept the consequences of amendment.
At present, however, the charge that the privilege is a costly
luxury in our society is, in the words of the Scots jury, "not
proven."
As discussion concerning the Supreme Court's performance in
criminal justice area reaches new peaks of intensity, critics of
the Supreme Court too often ignore the fact that many of its re-
cent decisions have also removed former impediments to law
enforcement activities. In 1967, the Court overturned the his-
toric "mere evidence" rule which had forbidden the search and
seizure for nontestimonial evidence. 222 Previously, the princi-
ple that the Fourth Amendment permitted reasonable searches
only for contraband and the fruits and instrumentalities of a
crime, had placed serious limitations on police investigations. In
another case, 223 decided only weeks after the controversial Mir-
anda decision, the Court held that the Fifth Amendment did not
prohibit the police from taking a blood sample from a suspect
over his protest. Similarly, in United States v. Wade, 224 the Court
specifically rejected arguments that a carefully safeguarded line-
up procedure would offend the Fifth Amendment. Moreover, the
Court has been careful to declare that, while the Fourth Amend-
ment applies against electronic eavesdropping, an authorizing
statute with appropriate safeguards could pass constitutional
scrutiny. 225 Finally, the Court condoned a "stop and frisk" in cer-
tain situations. 226
Lastly, the Supreme Court, contrary to some of its critics, has
not been overly aggressive in "freeing" convicted criminals from
jail. A rough count of decisions involving criminal appeals dis-
posed of by the Supreme Court in 1967, for example, reveals that
of nearly 1800 such cases, the Supreme Court took the accused's
"side" in less than 100, or slightly more than 5 percent of the
time.
While reasonable men may differ as to the requirements of the
Constitution in criminal justice, debate should certainly cen-
502 Report of the Task Force on Law and Law Enforcement
ter on the merits of the decisions themselves, not on the motives
of the men whose job it is to decide.
REFERENCES
1. Quinn Tamm, "Police must be more free," in Violence in the Streets.
Shalom Endleman, ed. (Chicago: Quadrangle Books, 1968), at 398-399.
2. Medford Evans and Margaret Moore, The Law Breakers (New York:
Arlington House, 1968), at 121-124.
3. Quoted in Kamisar, "On the Tactics of Police-Prosecution Oriented
Critics of the Courts," 49 Cornell L.Q. 436, 438 (1964). The references
are to Irvine v. California, 347 U.S. 128 (1954), and People v. Cahan,
44 Cal. 2d 434, 282 P. 2d 905 (1955).
4. Ervin, "Miranda v. Arizona : A Decision Based on Excessive and Vision-
ary Solicitude for the Accused," 5 Am. Crim. L.Q. 125 (1967).
5. Murphy, Address to the 28th Annual Judicial Conference of the Third
Judicial Circuit of the United States, 39 F.R.D. 375, 425 (1965).
6. Mossman, ABA, Section on Criminal Law, Summary of Proceedings
103 (1962).
7. Lumbard, "The Administration of Criminal Justice: Some Problems and
Their Resolution," 49 A.B.A.J. 840 (1963). Cf. Holtzoff, "Shortcomings
in The Administration of Criminal Justice," 17 Hasting* L.J. 17, 24,
(1965) : "While stressing the rights of the defendants, our system of
law ,in recent practice, seems to neglect the interest of the public and
the victims of crimes. . . . Yet the victims' rights not to be molested
have been violated by the criminal. These are worthy at least of as
much protection and consideration as those of the accused. The pendu-
lum has swung too far to the side of the accused."
8. Kamisar, "When Wasn't There a Crime Crisis?" Address to the 28th
Annual Judicial Conference of the Third Judicial Circuit of the United
States, 39 F.R.D. 375, 450 (1965).
9. Id. at 452.
10. Kamisar, "Are the Scales of Justice Evenly Balanced," 12 University
of Michigan Laiv Quadrangle Notes, Spring, 1968, at 6.
11. H. Friendly, The Fifth Amendment Tomorrow: The Case for Constitu-
tional Change (The Robert S. Marx Lectures for 1968, U. Cinn. College
of Law, Nov. 6, 7, 9, 1968), 37 U. Cinn. L. Rev 671 (1968).
12. 384 U.S. 436 (1966).
13. Id. at 479. Cf. H. Friendly, "A Postscript on Miranda," in Benchmarks
266, 267-268 (1967).
14. 378 U.S. 478 (1964).
15. 377 U.S. 201 (1964).
16. Cf. Sobel, "The Exclusionary Rules in the Law of Confessions," in The
Practicing Law Institute's Selected Materials on New York Criminal
Practice 3-1, 3-61 (1965).
17. Hopt v. Utah, 110 U.S. 574, 583 (1884) ; Pierce v. United States, 160
U.S. 355, 357 (1896). For a thorough history of the evolution of
Supreme Court decisions in this area, see Lockart, Kamisar, and Choper,
Constitutional Rights and Liberties: Cases, Comments and Questions
(2d ed. 1967), at 246-58.
18. 168 U.S. 532 (1897).
19. Id. at 538.
20. Id. at 542.
21. E.g., Powers v. United States, 223 U.S. 303 (1912) ; Ziang Sun Wan v.
United States, 266 U.S. 1 (1924) ; United States v. Carignan, 342 U.S.
36 (1951).
The Constitution and Rights of the Accused 503
22. United States v. Carignan, 342 U.S. 36, 41 (1951) (footnotes omitted).
23. 318 U.S. 332(1943).
24. 211 U.S. 78 (1908).
25. 297 U.S. 278 (1936).
26. Id. at 285.
27. Comment, "The Coerced Confession Cases in Search of a Rationale,"
31 U. Chi. L. Rev. 313 note 1 (1964).
28. The terminology is Justice Sobel's, supra note 16, at 3-13.
29. Ashcraft v. Tennessee, 322 U.S. 143, 154 (1943).
30. E.g., Brown v. Mississippi, 297 U.S. 278 (1936).
31. E.g., Ashcraft v. Tennessee, 322 U.S. 143 (1943).
32. Ibid.
33. Stein v. New York, 346 U.S. 156, 185 (1952).
34. E.g., Cicenia v. Lagay, 357 U.S. 504 (1958).
35. E.g., Haley v. Ohio, 332 U.S. 596 (1947).
36. E.g., Payne v. Arkansas, 356 U.S. 560 (1958).
37. E.g., Lynumn v. Illinois, 372 U.S. 528 (1963).
38. E.g., Spano v. New York, 360 U.S. 315 (1959).
39. E.g., Payne v. Arkansas, 356 U.S. 560 (1958).
40. E.g., Crooker v. California, 357 U.S. 433 (1958).
41. E.g., Rogers v. Richmond, 365 U.S. 534 (1961).
42. Davis v. North Carolina, 384 U.S. 737, 740 (1966).
43. See text supra at accompanying notes 15-22.
44. 365 U.S. 534 (1961).
45. Id. at 540-541.
46. 378 U.S. 1 (1964).
47. 378 U.S. 478 (1964).
48. Friendly, supra note 13, at 266.
49. Miranda v. Arizona, 384 U.S. 436, 44, 463-466 (1966).
50. U.S. Const, amend. 5.
51. James Q. Wilson, "Crime and Law Enforcement," in Agenda for the
Nation, Kermit Gordon, ed. (Washington, D.C.: Brookings Institution,
1968), at 193.
52. Fred E. Inbau, "Police Interrogation A Practical Necessity," in Police
Power and Individual Freedom, Claude R. Sowle, ed. Chicago: Aldine
Pub. Co. 1962), at 147-148.
53. People v. Huntley, 15 N.Y. 2d 72, 78 (1965). Cf. N.Y. Code Grim.
Proc. 813-c (1962).
54. Sobel, supra note 16, at 3-63.
55. Id. at 3-64.
56. Mat 3-61.
57. N.Y. Times, Dec. 2, 1965, sec. I, at 1.
58. Id.
59. Cf. Sobel, supra note 16, at 3-66: "If they [the police] rely heavily on
interrogation, it is not because they are lazy but because they are over-
whelmed by quantity."
60. Inbau, supra note 52, at 148. But see Davis v. Mississippi, 37 U.S.L.W.
4359 (1969), in which the police took into custody 24 Negro boys subject-
ing to fingerprinting and station-house questioning, and also interro-
gated another 40 or 50 at headquarters, at school, or on the street, in
attempting to identify an assailant where his rape victim could describe
him only as a Negro youth.
61. Cf. Sobel, supra note 16, at 3-64.
62. Mosk, "The Anatomy of Violence," Beverly Hills Bar Journal, Oct.
1968, at 10, 14-15.
63. Reik, The Compulsion to Confess: On the Psychoanalysis of Crime and
Punishment" (1959) at 180. See also Driver, "Confessions and the
Social Psychology of Coercion," 82 Harv. L. Rev. 42, 51-57-59 (1968).
504 Report of the Task Force on Law ana i^m jSnfoi cement
64. Hugh Trevor-Roper, The Crisis of the Seventeenth Century; Religion
The Reformation and Social Change (New York: Harper & Row, 1966),
at 122.
65. 7d.atl24.
66. Reiss and Black, "Interrogation and the Criminal Process/' 374 Annals
47 (1967).
67. Friendly, supra note 13, at 273.
68. Medalie, Zerta, and Alexander, "Custodial Police Interrogation in our
Nation's Capital: The Attempt to Implement Miranda," 66 Mich. L.
Rev. 1347 (1968); Note, "Interrogations in New Haven: The Impact
of Miranda," 76 Yale LJ. 1519 (1967) ; Seeburger & Wettrick, "Miranda
in Pittsburgh A Statistical Study," 29 U. Pitt. L. Rev. 1 (1967) ;
Reiss and Black, supra note 66.
69. Medalie et al., id. at 1351-1352.
70. Note, "Interrogations in New Haven," supra note 68, at 1565.
71. E.g., Medalie et al., supra note 68, at 1365-1366, 1372-1375.
72. Cf. Bradley, Address to the 28th Annual Judicial Conference of the
Third Judicial Circuit of the United States, 39 F.R.D. 375, 439 (1965).
The publicity given Miranda may, however, be having a general edu-
cational effect on the community as a whole, including potential
arrestees. See Note, "Interrogations in New Haven" supra note 68,
at 1615.
73. Cf. Friendly, supra note 13, at 283-284. But cf. Friendly, supra note
11, at 715 note 187.
74. See R. Hayes, "Common Fallacies in Criticism of Recent Supreme Court
Decisions on Rights of Accused," 53 A.B.A.J. 425, 427 (1967).
75. The Report of the President's Commission on Law Enforcement and
Administration of Justice (hereinafter cited as Crime Commission),
The Challenge of Crime in a Free Society (Washington, D.C.: Gov-
ernment Printing Office, 1967), at 1.
76. Clark, Remarks at the Annual Meeting of the American Bar Associa-
tion, Miami Beach, Fla., Mar. 9, 1965.
77. Quoted in Kamisar, supra note 3, at 440.
78. Cf. Leon Jaworski, "Does Justice Favor the Accused?" Address at
Texas A.&M. University, Feb. 26, 1969, at 4.
79. A 1962 study revealed that in the 22 convictions reversed by the Supreme
Court from 1936 until the time of the study, "defendants in exactly
half of the cases were again convicted of the same or a lesser included
offense. . . ." Ritz, "State Involuntary Confession Cases: Subsequent
Developments in Cases Reversed by U.S. Supreme Court and Some Cur-
rent Problems," 19 Wash, and Lee L. Rev. 202, 208 (1962).
80. See Sutherland, "Crime and Confession," 79 Harv. L. Rev. 21, 36, 37
(1965).
81. Cf. Holmes, The Common Law 94 (1881).
82. See Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) ; United States v.
Harriss, 347 U.S. 712 (1954).
83. U.S. Const, amend. 6; Fed. R .Crim. P. 10.
84. Fed. R. Crim. P. 11.
85. 384 U.S. 436, 448 (1966).
86. See Inbau, supra note 52, at 149.
87. Bernard Weisberg, "Police Interrogation of Arrested Persons: A Skep-
tical View," in Police Power and Individual Freedom, supra note 52, at
179.
88. Herman, "The Supreme Court and Restrictions on Police Interroga-
tions," 25 Ohio St. LJ. 449, 498 (1964). Cf. Miranda v. Arizona, 384
U.S. 436, 533 (1966) (dissenting opinion).
89. Note, "Developments in the Law Confessions," 79 Harv. L. Rev. 935,
939 (1965).
The Constitution and Rights of the Accused 505
90. Cf. U.S. Const, amend. 6: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . ." [Emphasis added.]
91. Homer, The Iliad i, 447 (Pope trans.) . See L. Levy, Origins of the Fifth
Amendment 34 (1967).
92. National Commission on Law Observance and Enforcement, No. 11,
Report on Lawlessness in Law Enforcement (1931) .
93. Report of Commission on Civil Rights (Washington, B.C., 1961).
94. Crime Commission, supra note 75, Challenge of Crime in a Free Society,
at 93.
95. 384 U.S. 436, 446.
96. Cf. T. Nelson, The Torture of Mothers (Boston: Beacon Press, 1968)
at 81.
97. See Crime Commission, supra note 75, Challenge of Crime in a Free
Society, at 44.
98. Id. at viii.
99. Id.
100. Id. at v.
101. 384 U.S. 436,448.
102. Driver, "Confessions and the Social Psychology of Coercion," 82 Harv.
L. Rev. 42, 50-51 (1968) (footnotes omitted). The work referred to in
quotation is F. Inbau and J. Reid, Criminal Interrogation and Con-
fessions (2d ed., 1967). The second post-Miranda edition of this work,
necessitated, in the words of the authors, "by the . . . decision of the
Supreme Court of the United States in Miranda v. Arizona," id. at vii
(2d ed., 1967), appears to have been but little changed in approach
from the first edition. Earle, Book Review, 6 Duquesne U.L. Rev. 436
(1968).
103. Miranda v. Arizona, 384 U.S. 436, 533.
104. Id. at 532.
105. See Vignera v. New York, decided sub nom. Miranda v. Arizona, 384
U.S. 436, 493 (1966), in which an assistant district attorney and a court
reporter were brought into the station house to take defendant's "deposi-
tion" after the police interrogation had produced admissions. See also
Jackson v. Enno, 378 U.S. 368, 371, 423 n. 1 (1964), where the same
procedure was followed. This appears to have been the usual practice
in New York prior to Miranda. See N.Y. Times, Jan. 28, 1965, p. 1, 17.
106. Miranda v. Arizona, 384 U.S. 436, 533 n. 2.
107. Barrett, "Police Practices and the Law From Arrest to Release or
Charge," 50 Calif. L. Rev. 11, 41-45 (1962).
108. Cf. text accompanying notes 6-72.
109. Sutherland, supra note 80, at 37.
110. Driver, supra note 102, at 44.
111. F. Inbau and J. Reid, supra note 102, at vii.
112. Driver, supra note 102, at 51.
113. Sutherland, supra note 80, at 37-38.
114. N.Y. Times, Jan. 28, 1965, at 1.
115. Id. at 17.
116. Crime Commission, supra note 75, Challenge of Crime in a Free Society,
at 44.
117. Cf. Brief for Petitioner at 20, Vignera v. New York, decided sub nom.
Miranda v. Arizona, 384 U.S. 436 (1966).
118. U.S. Const, amend. 14. For a discussion of the issues raised in this
section, see "Addresses and Symposium at the University of Kentucky
College of Law Building Dedication," 54 Ky. L.J. 446, 464 (1966).
119. Friendly, supra note 11 at 711.
120. Offutt v. United States, 348 U.S. 11, 14 (1954). See also Crime Com-
mission, supra note 75, Cliallenge of Crime in a Free Society, at viii.
121. See Id.
506 Report of the Task Force on Law and Law Enforcement
122. See Crime Commission, supra note 75, Challenge of Crime in a Free
Society, at 33, which indicates that the estimated economic impact of
crime, including crime control efforts, is approximately $21 billion
annually.
123. Traynor, "The Devils of Due Process in Criminal Detection, Detention,
and Trial," 33 U. Chi. L. Rev. 657 (1966).
124. Walter B. Schaefer, The Suspect and Society (Evanston, 111.: North-
western University Press, 1967). See also Schaefer, "Police Interroga-
tion and the Privilege Against Self-Incrimination," 61 N.W. U.L. Rev.
506 (1966).
125. Friendly, supra note 11 ; see also Friendly, "The Bill of Rights as a Code
of Criminal Procedure," in Benchmarks 235 (1967) ; and see also supra
note 13.
126. Crime Commission, supra note 75, Challenge of Crime in a Free Society,
at 303. See also Lewis Mayers, Shall We Amend the Fifth Amendment-
(New York: Harper, 1959). Cf. Jaworski, supra note 78.
127. McCarthy v. Arnstein, 254 U.S. 71 (1920).
128. Quinn v. United States, 349 U.S. 155 (1955).
129. Boyd v. United States, 349 U.S .116 U.S. 616 (1886).
130. Murphy v. Waterfront Comm., 378 U.S. 52 (1964).
131. Marchetti v. United States, 390 U.S. 39 (1968) ; Leary v. United States,
37 U.S.L.W. 1177 (May 19, 1969).
132. See 8 Wigmore, Evidence 2250 et seq. (McNaughton ed., 1961).
133. Miranda v. Arizona, 384 U.S .436 (1964).
134. Brown v. Walker, 161 U.S. 591 (1896).
135. Griffin v. California, 380 U.S. 609 (1965).
136. Grunewald v. United States, 353 U.S. 391 (1957) .
137. Coumselman v. Hitchcock, 142 U.S. 547, 562 (1892) .
138. Friendly, supra note 11, at 684.
139. E. Griswold, The Fifth Amendment Today (1955) , at 7.
140. Boyd v. United States, 116 U.S. 616, 631-632 (1886).
141. Friendly, supra note 11, at 682.
142. See, e.g., "The Privilege Against Self-Incrimination: An International
Symposium," 51 J. Crim. L.C. & P.S. 129 (1960).
143. Ullman v. United States, 350 U.S. 422, 438 (1956), quoting Holmes, J.,
in New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
144. Levy, supra note 91.
145. Id. at 46-47.
146. Id. at 47.
147. 9 Ed. II, c. 1 (1315) . See Levy, id. at 49.
148. Id.
149. Levy, supra note 91 at 49-57.
150. 2 Henry IV, c. 15 (1401). See Levy, id. at 57.
151. 16 Car. I, c. 11 (1640). See Levy, id. at 281-282.
152. Levy, id. at 128-135, 182-183.
153. Id. at 65.
154. Id. at 139.
155. Id. at 212.
156. Id. at 70.
157. Id. at 103.
158. Id. at 134.
159. Id. at 96.
160. Id. at 171.
161. Id. at 140, 171-172, 178, 235.
162. Id. at 331.
163. Id.
164. Id. 42, 330-332; cf. Friendly, supra note 11, at 695.
165. Id. at 34-35, 42. Levy is incorrect when he states that the Star Chamber
The Constitution and Rights of the Accused 507
could authorize torture. See Elton, The Tudor Constitution (1960), at
(59-70.
166. Id. at 331.
167. Id. at 281-282.
168. Id. at 282.
169. See Id. at 313-314.
170. Id. at 325.
171. Id. at 313.
172. Id. at 31 7.
173. Id. at 320.
174. Id. at 328-329.
175. Id. at 320.
176. Mat 328.
177. See Friendly, supra note 11, at 709 and Levy, id. at 317.
178. 8 Wigmore, Evidence 2266 at 401 (McNaughton ed., 1961) .
179. Cf. Miranda v. Arizona, 384 U.S. 436, 510, 527 (1966) (dissenting
opinions) .
180. Friendly, supra note 11, at 679.
181. Tehan v. Shott, 382 U.S. 406, 414 (1966).
182. Friendly, supra note 11, at 681.
183. 378 U.S. 52, 55 (1964). The parenthetical numbering in the quotation
is Judge Friendly's citations in the quotation have been omitted.
184. Friendly, supra note 11, at 686-687.
185. C. McCormick, Handbook of the Law of Evidence 43 (1954).
186. Clapp, "Privilege Against Self-Incrimination," 10 Rutgers L. Rev. 541,
548 (1956).
187. Crime Commission, supra note 75, Challenge of Crime in a Free Society,
at 44.
188. 380 U.S. 609 (1965).
189. Friendly, supra note 11, at 687-688. See text, infra, at 724.
190. Id. at 690, 711.
191. Mat 695.
192. Marshall, "Evidence, Psychology, and the Trial: Some Challenges to
Law," 63 Col. L. Rev. 197, 212-213 (1963).
193. Friendly, supra note 11, at 695.
194. Mat 694.
195. Mat 693.
196. Mat 694.
197. Id.
198. Id. at 683, quoting Mayers, supra note 126, at 168-169.
199. Id. at 695.
200. There may, however, be an indirect sanction in Judge Friendly's draft
amendment which would "compel" a defendent to take the stand at his
trial. If he testifies at the pre-trial hearing and that testimony is offered
against him at the trial in a manner which makes him appear not
credible, (see infra, text accompanying note 207) he may be "compelled"
to take the stand in order to offset that impression.
201. Friendly, supra note 11, at 695.
202. Mat 723.
203. Id. at 721-722. Judge Friendly also proposes amendments which would
allow compulsory production of documents and other tangible objects,
dismissal of government employees or defrocking of a person licensed
by the state for refusing to give information relevant to his perform-
ance of duties, requiring a suspect to identify himself and make him-
self available for physical examination, and compulsory registration
under certain specified circumstances.
204. Friendly, supra note 11, at 696-697.
205. Id. at 723.
508 Report of the Task Force on Law and Law Enforcement
206. Harry Kalven and H. Zeisel, The American Jury (Boston: Little,
Brown, 1966) at 144-146.
207. Cf. Friendly, supra note 11, at 113.
208. Cf. Brief for Appellant at 5, 10, United States v. Hughes, No. 32875 (2d
Cir., filed Jan. 13, 1969). See also 14, "the net effect was ... not unlike
having Al Capone played by John Wayne."
209. Friendly, supra note 11, at 701.
210. Mat 700.
211. Id. at 714.
212. Cf. N.Y. Times, Mar. 4, 1969, at 19.
213. Friendly, supra note 13, at 277.
214. Id. at 282.
215. 391 U.S. 1 (1968).
216. Cf., e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939) ;
Theatre Enterprises, Inc. v. Paramount Film Dist. Corp., 346 U.S. 537
(1954).
217. 37 U.S.L.W. 4260 (U.S. Mar. 25, 1969). This decision seems justifiable
as a means of preventing the police from evading Miranda by simply
moving the situs of the interrogation out of the stationhouse. Cf.
Kamisar, "A Dissent from the Miranda Dissents: Some Comments on
the 'New' Fifth Amendment and the Old 'Voluntariness' Test," 65 Mich.
L. Rev. 59, 60 note 8 (1966) .
218. 384 U.S. 436 (1966).
219. U.S. Const, amend. 14.
220. Friendly, supra note 11, at 672.
221. Id. at 724.
222. Warden v. Hay den, 387 U.S. 294 (1967).
223. Schmerber v. California, 384 U.S. 757 (1966).
224. 388 U.S. 218 (1967).
225. Katz v. United States, 389 U.S. 347 (1967) ; Berger v New York, 388
U.S. 41 (1967).
226. Terry v. Ohio, 392 U.S. 1 (1968). Stop and frisk is permissible where
a police officer "observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may be
afloat and that the persons with whom he is dealing may be armed and
presently dangerous. . . -"
CHAPTER 21
COURT MANAGEMENT AND THE
ADMINISTRATION OF JUSTICE*
". . . We have never come to grips with . . . court
administration. . . . We should make bold plans to
see that our Courts are properly . . . managed to do
the job the public expects. . . . We must do every-
thing that modern institutions these days do in
order to keep up with growth and changes in the
times." Chief Justice Earl Warren, Speech to
District of Columbia Judicial Conference, June 2,
1969.
Violence in America, some boldly assert, may be directly asso-
ciated with poor court management, particularly in trial courts
hearing criminal charges. If this assertion is true, improved
court management may help, along with other improvements in
courts, to provide better control of violence and to reduce un-
desirable side-effects of poor court management.
In the last decade, the problems of delay in the courts, for
example, have been observed by many persons, both lay and
professional. Such delay is often the result of poor management.
Two conferences held by the United States Attorney General
in the mid-1950's pinpointed unjustifiable delays as causing
major weaknesses in court systems: 1
(1) Release on bail of persons accused of serious crime
(e.g., robbery) for too long, with increased likelihood of the
person becoming a fugitive from justice or commiting a
second crime.
(2) Witnesses who give up in frustration after numerous
cancelled court appearances. Police officers are particularly
troubled by the frustrations of being witnesses in criminal
cases.
(3) Jurors who despair waiting endless hours only to go
home not having fulfilled their civic duty in any meaningful
way.
* This chapter was prepared by David J. Saari, Director, District of
Columbia Court Management Study.
509
510 Report of the Task Force on Law and Law Enforcement
(4) Plaintiffs who settle for too little because they cannot
wait for the court to act.
(5) Criminal appeals delayed, and thus prolonging the
ultimate finality of conviction and sentence.
Delays resulting from poor court management thus help to cre-
ate conditions of disrespect for law and legal institutions, which
in turn can increase the chances for violence in our society.
When courts are properly managed, the values of efficiency,
economy and effectiveness are joined with the values of equality,
due process, and justice for all. The joining of such values is
what citizens seek from public institutions in a democratic so-
ciety. For example, genuine thoughtfulness extended to wit-
nesses and jurors may be a small thing, but it is important to
obtain their cooperation. Public institutions quite often lack that
decent grace which makes a person feel positively about his
government. Sophisticated court management with a feeling for
all people connected with the courts, for professional values, for
constitutional and statutory standards can, in its own way, be
a positive factor in preventing loss of respect for law and for
courts.
WHAT IS COURT MANAGEMENT?
Although court management does differ from other kinds of
management, it does nevertheless try to handle men, money, ma-
terials, and space. Just as all managers must plan, organize, del-
egate, supervise, coordinate and review, so must the courts work
with budgets, personnel problems, space allocations, purchases,
research functions and development. And they must make daily
contacts with seniors, peers, and subordinates.
The real tasks of court management lie buried and sometimes
unrecognized in the total job of the judge. The main part of the
judge's job is to adjudicate to decide cases and to resolve con-
troversies. He looks back in time to facts and situations. He de-
cides, weighing witnesses' words and other evidence that can be
seen or heard. Many cases ask no more of a judge than a single
decision a judgment, but in a large number of cases the judge
must administer the remedy as well as determine the right.
Probation, marital support, mental health, and juvenile cases pro-
vide four distinct examples of administrative or managerial func-
tions arising from judicial decisions. Managing the people who
aid the judge in administering the remedy (e.g., support pay-
ments to an ex-wife and children) has created a new set of
burdens on the judge particularly the trial judge.
While a judge must look back in exercising much of his ad-
judicative role, he must when he manages look ahead, plan,
Court Management and the Administration of Justice 511
and forecast needs of his court and the citizens it serves. The
task placed upon the judge to manage courtroom personnel,
courthouse personnel (probation workers, clerks of court, bank-
ruptcy officers, and so on) requires tools appropriate to the task.
These management tools are not acquired in law school or from
private practice of law. How to organize or reorganize depart-
ments of the court, projecting program costs, establishing man-
power training and development programs, deciding upon com-
puter processing of information, preparing space utilization and
building programs appropriate to a public agency, strengthening
ties to budget and financial agencies outside the court, building
sound relationships with a legislature and with executive depart-
ments all of this departs rather substantially from the activities
associated with the judicial adjudicative role carried out on the
bench and in the judge's chambers.
We should also have some idea of what court management is
not. It is not a universal panacea for all the non-judicial prob-
lems of a court. It is not a job exclusively for efficiency experts
whose only values are increased speed, increased production,
lower costs, and less waste. Finally, although improved court
management may save a judge's time for adjudication of specific
cases, it is also likely to involve the judge in policy issues, in
developing court rules, and in setting guidelines for court admin-
istrative matters. Improved court management will see delegation
of the details of management to someone other than the judge,
but the important matters of administrative policy as well as
judicial policy must be established by the judge.
Court management in its best sense tries to accommodate
multiple values some of which are obviously in conflict (uni-
formity vs. individualization of cases) and it attempts to seek
a practical daily accommodation of value differences. Manage-
ment is a rational activity for the most part; and it suggests
goals, plans, guided actions, and evaluations of programs on many
different fronts. 2 This presumption of rationality does not how-
ever, rule out sensitivity to persons inside or outside the courts.
Consequently, better court management does contribute to do-
mestic tranquility, order, and liberty all at the same time.
COURT MANAGEMENT TODAY
Trial courts are part of the peacekeeping operations of govern-
ment. All courts, but particularly trial courts, are part of the
total process of social control designed for less complex and de-
manding times. The management design of America's trial courts
with few exceptions is essentially "displaced rural," and the
design is illsuited for today's urban needs for governance. 3 Splin-
512 Report of the Task Force on Law and Law Enforcement
tered structure and absence of management are primary charac-
teristics.
Most of the courts in the United States are not well run : they
are ineffective in disposing of filed caseloads and in promoting
prompt justice. Delay in civil personal injury actions in 97 se-
lected jurisdictions in the United States averages 20.7 months. 4
The median delay in felony cases in federal courts is 9.5 months
in Washington, B.C., and 9.4 months in the eastern District of
New York. 5 Nineteen percent of the criminal cases in the federal
courts are pending for 1 year or more. 6
Nor is the problem of delay confined to the trial courts. In
federal appellate courts in 1968, the median time for the com-
pletion of the record was 1.8 months in civil cases and 2.8 months
in criminal cases. The filing of briefs took an additional 3.5
months. Another 1.5 months slipped by before the typical case
was heard or submitted. After the case was heard, still another
1.5 months was required for final disposition. 7 Since 1959, the
number of cases held for extended periods after argument has
increased by 500 percent. On June 30, 1959, only 33 cases in
U.S. Courts of Appeal were undecided 3 months after appellate
argument. Only one of those cases had been held for more than
a year. 8 On June 30, 1968, there were 256 cases which had been
held for more than 3 months, and 23 of those cases had been held
for more than a year after argument. 9
Most courts of the nation do not have genuinely effective man-
agement skill. But the Los Angeles Superior Court, which has
an Executive Officer, is the prime exception ; yet even that pro-
gressive court is not fully structured so that management can
be most effective. 10 Despite the presence of state court adminis-
trators in most of the states, who act as staff secertariats for
such administration as is permitted without direct managerial
duties, state-wide management is generally absent. 11 In this
sense, the federal courts have little management.
The managment of judicial institutions is essentially the same
whether we consider federal or state courts, or differentiate
courts by function such as trial, appellate, juvenile, or traffic.
The characters change name from court to court, but the interests
remain constant for management purposes. For example, one
interest for all court managers is whether the organization has
enough money to perform the tasks required; therefore, to do
this, they must build relationships with those who provide funds,
such as county budget officers, county commissioners, legislators,
and appropriations committees. Even justice has to be financed. 12
Another current condition of court management is specializa-
tion. Its impact on the judiciary has been slow in coming, but
it is building. As the need for management specialists in courts
becomes more clear, so does the concurrent need for the redefini-
Court Management and the Administration of Justice 513
tion of what the judge, the clerk, and other department heads are
to do. The effective insertion of a genuine court executive in a
court system requires an adjusted role for all of those with whom
he interacts judges, court employees, lawyers, witnesses, jurors,
bar associations, and many others. 13
Although court management is affected by the general trend
away from autocratic administration, this condition lingers on in
the courts. Because of the limited and outdated notions of man-
agement held by many judges, the autocratic administrative
tradition predominates in the judiciary. Just as the national
egalitarian trend has tended to equalize relationships of men to
women, management to workers, blacks to whites, and parents
to children, 14 democratic and egalitarian forces are shaping the
field of court management. The judge in exercising his talents
becomes part of a team, much as a doctor is a part of a team in
a hospital. Teamwork based upon a more cooperative form of
court management is more complex because it involves a sharing
of administrative responsibilities previously invested in one man
only the judge.
Court management is also handicapped by the lack of adequate
communications between the disciplines seriously studying non-
legal organizations and those studying courts. Mnaagement re-
search in nonlegal institutions is poorly diffused into the legal
institutions, American law schools contribute little or nothing to
improvement of court management, and other disciplines have
ignored courts. Certainly the administration of justice needs
as much attention as that given by agricultural extension serv-
ices to better ways to farm the land.
Like Vice Presidents for Administration in business or Ex-
ecutive Officers in military organizations, American courts need
professional court executives with managerial expertise and re-
sponsibility who would have pay and stature comparable to the
judiciary in every multi judge, general jurisdiction court of three
or more judges. He would be responsible for the management
tasks mentioned above that now lie buried and sometimes unrec-
ognized in the total job of a judge. In courts serving rural areas,
a roving, regional court executive should be employed. Linking
such court executives into the state judicial system with a state-
wide court administrator is a problem that could be resolved after
study of the particular court management problems of each state.
PUTTING EFFECTIVE MANAGEMENT INTO THE
ADMINISTRATION OF JUSTICE
What we should do to improve court management depends upon
what has been done and what needs to be done. Many take pride
in one of our major exportable national strengths: management
514 Report of the Task Force on Law and Law Enforcement
"know-how." We export management skills abroad, but we find
it nearly impossible to infuse management skills into some of our
critically important institutions at home, the courts being a typi-
cal example. American management prowess, modified to serve
professional organizations, is needed in judicial systems. The
ABA Criminal Justice Project and the National Court Assistance
Act are two programs which can help meet this need.
AMERICAN BAR ASSOCIATION SPECIAL
COMMITTEE ON STANDARDS FOR THE
ADMINISTRATION OF CRIMINAL JUSTICE
In testimony before the National Commission on the Causes
and Prevention of Violence, the President of the American Bar
Association, William T. Gossett, suggested :
Strict law enforcement alone can only be one component of
an effective strategy to minimize violence in America. Where
violence threatens society, as it does today, one necessary re-
sponse is clearly, forcefully and efficiently, to enforce the
criminal laws. 15
Not enough is known by the general public about the efforts of
the American Bar Association and other similar groups to move
for comprehensive reexamination and improvement of criminal
justice in America. All Americans should consider supporting
the reform efforts launched by the ABA, the American Law In-
stitute, and the Institute of Judicial Administration of New York
University. The ABA action, in particular, leads the way in a
well-studied and thoughtful manner to improve criminal justice
administration. Court management will also play a critical sup-
porting role here because it is one critical component of an effec-
tive overall strategy.
In 1964, the American Bar Association created a Special Com-
mittee on Minimum Standards for Criminal Justice. This
launched what has been described as the largest undertaking of
its kind ever sponsored by the organized bar. The 12-member
Special Committee was supplemented by six 11-man advisory
committees (later enlarged to seven) to review and update every
phase of the criminal process ranging from pre-trial proceedings
to final appellate review and post conviction processes. More
than 75 lawyers, judges, and legal educators have been involved
in formulating recommended new standards over the past 4
years. Completion of all reports is expected by the end of 1970.
Some of the reports have already been approved by the House
of Delegates of the ABA, and others are expected to come before
that body in February 1970.
Court Management and the Administration of Justice 515
The Special Committee will complete its reports and will co-
operate with the Criminal Law Section of the ABA to seek adop-
tion of the new ABA standards by the 50 states and by the na-
tional government.
The reports cover the following topics :
Reports completed:
1. Standards for Fair Trial and Free Press.
2. Standards for Post Conviction Remedies.
3. Standards for Review of Sentences.
4. Standards for Pleas of Guilty.
5. Standards for Speedy Trial.
6. Standards for Providing Defense Services.
7. Standards for Joinder and Severance of Criminal
Charges.
8. Standards for Trial by Jury.
9. Standards for Sentencing Alternatives and Procedures.
10. Standards for Pre-Trial Release.
11. Standards for Criminal Appeals.
Reports in preparation:
1. Standards for Pre-Trial Discovery and Procedure.
2. Standards for Prosecuting Attorneys.
3. Standards for Defense Counsel.
4. Standards for Police Use of Electronic Surveillance.
5. Standards for the Judge's Function in Criminal Justice.
The virtue of the ABA Criminal Justice Project apart from
striving for reasonable uniformity of procedural standards
lies in its effort to define the role of each of the three principal
participants: the prosecutor who initiates, the lawyer who de-
fends, and the judge who presides. In defining the roles, the ABA
also articulates standards of acceptable conduct. This is not
done solely to achieve a form of protocol ; it is undertaken to
improve efficiency and to eliminate the waste of time and human
resources. Prosecutors, who know the "ground rules" and know
they will be enforced, will more carefully screen cases before
invoking the criminal processes and will move more effectively
and swiftly present the case. Defense lawyers with counterpart
guidelines will more realistically evaluate the chances of a not-
guilty verdict and perhaps seek to lighten the reasonably anti-
cipated consequences of a faulty defense. Judges confronted with
lawyers who have guidelines of conduct and who themselves
have similar guidelines for their function, will be able to conduct
trials more speedily without impairment of basic fairness. Ap-
peals wll be handled in a similar manner.
Retired U.S. Supreme Court Justice Tom C. Clark has agreed
to head an ABA Implementation Committee to work with the
516 Report of the Task Force on Law and Law Enforcement
ABA Criminal Law Section to seek the adoption of the standards
in state and federal courts. The effort will be the first on a
national scale to seek some reasonable uniformity of criminal
law processes. The implementation will involve both new legis-
lation and revisions of internal rules and practices of courts and
law enforcement agencies. The recommendations are designed
to update procedures and to meet the needs of a growing nation
along with refined protections in procedure. Many state and
federal courts have already adopted some of the standards.
The work of the American Bar Association particularly in
the implementation phase will require the efforts of many
groups to achieve effective reform. The new standards will be
achieved to the extent the public understands and supports neces-
sary reforms. An integral part of court management involves
daily contact with the administration of the criminal laws of each
jurisdiction. Improved court management will go hand in hand
with the enhanced standards found in the ABA recommendations
and with interested public support. Private groups looking for
challenge and guidance can find both in the ABA Standards. Re-
sponsible action can thus be promoted for a better system of
justice for this Nation.
SEED MONEY FOR THE REFORM OF COURTS-
NATIONAL COURT ASSISTANCE ACT
A large number of advances in court management reform
have been spurred by private ventures financed by private re-
sources. Private interest and private philanthropy have a proper
place in the American way of life, but the whole burden of mod-
ernization and of using management "know-how" in the courts
cannot be permitted to fall solely upon private resources. Gov-
ernmental resources must be bolstered to achieve a new level of
innovation in court management.
A far-sighted "National Court Assistance Act," proposed by
Senator Joseph D. Tydings of Maryland in 1966 16 suggested
government seed money for new ideas to make the state courts
of this nation work more effectively. In principle, the concept
of state aid was approved by the American Bar Association Sec-
tion on Judicial Administration and by the National Conference
of State Trial Judges, but it was disapproved by the Conference
of Chief Justices of the States. Questions of federal domination
and interference arose, and, as a consequence, every effort was
made to amend the act so that it would in no way permit federal
interference with local courts. 17
The federal government has a proper and responsible role to
promote effectve court management in state courts because their
management affects federal courts in every part of this country.
Court Management and the Administration of Justice 517
Nothing is more basic to sound government than a well-managed
court system. Each state can and should decide for itself whether
it needs help, and then it should be up to the federal government
to provide the vehicle through which financial resources may be
channeled to each state requesting aid. The National Court As-
sistance Act was framed in the tradition of federal-state coop-
eration similar to acts which aid state education, health, and
welfare programs.
Senator Tydings' appreciation of the virtues of federalism
should not be overlooked; his concern for local courts is clear.
Expanding federal judicial jurisdiction when state courts fail in
their obligations to handle state or local disputes in a timely
manner is opposed by the Senator. His testimony bears this out.
As state and local court systems fall further behind in
their efforts to keep abreast of mounting caseloads, prsesure
understandable pressure mounts for the lawyers to ex-
pand the jurisdiction of the federal courts to embrace a
wider range of court actions. Such expansion which many
of us believe is not consistent with our federal system, could
erode the very foundations of the co-equal partnership be-
tween the national government and the states. The best way
to remove the pressure is to encourage the states to take
steps to deal effectively with deficiencies in the administra-
tion in their own court systems. 18
The principle of the National Court Assistance Act is alive
today and the concept of aid to states is ready to take on its
own life. Court reform, including better court management prac-
tices, is sometimes costly in the experimental states, but analysis
of courts by experts can do much to help the courts see their
problems more clearly and seek new solutions. We should free
some federal money to assist in the application of American
management "know-how" to our courts. The Federal Judicial
Center, which serves the federal court system, provides proof
that Congress believes the federal court establishment must and
will reform. Block grants to states, involvement of the Federal
Judicial Center, creation of a separate commission to oversee
equitable distribution of the funds, or some combination of these
and other possible institutional innovations are needed to couple
resources with need.
Improving justice, no less than enhancing farm practices, for
example, is vital to the nation, and both require fiscal attention
from the national government. Planting properly germinated
"seeds" may yield a bountiful harvest of ideas. The basic task
of support remains with state and local governments. They
would profit greatly by sharing knowledge much the way a
518 Report of the Task Force on Law and Law Enforcement
Colorado wheat farmer shares his knowledge with a Kansas
wheat farmer.
The National Court Assistance Act is framed in the great tradi-
tion of American reform. As Arthur Schlesinger, Jr., has stated
it:
We have never regarded democracy as a finished product
but something to keep on building. 19
COURT MANAGEMENT, 1970-1975: A SUGGESTED
AGENDA FOR PUBLIC POLICY
What will courts be like in 1975, assuming that the American
Bar Association standards have been largely implemented and
something like the National Court Assistance Act has been in
effect for 5 years or so? Our look ahead will focus upon the
managerial function in the courts urban, suburban, and rural;
both trial and appellate. And it will center on the interlocking
roles of the courts, the law schools, the bar associations, the
legislatures, the specialty groups promoting court improvements,
and the lay groups.
1. Court Executives
By 1975, each of the metropolitan areas in the United States
will have an adequately paid professional court executive in the
major state trial court of general jurisdiction and in each local
court (such as a municipal court or a state court of limited
jurisdiction). These urban trial court specialists will know one
another, deal with one another, and be the prime intercourt
connecting points in resolving problems such as overschednled
counsel and other matters. At least the largest urban areas
multicounty or multistate will have high quality managers with
pay and status comparable to judges, to serve millions of citizens
and thousands of judges.
Nothing is accomplished by adding one court executive without
giving him an adequate staff for his office. The court management
function requires proper staffing and supporting management
specialists in personnel, accounting, budget, computer data pro-
essing, records management, and space planning. The entire
array of management specialists is not necessary in every office,
of course. A state or region of states might need only one or two
types of specialists to serve the entire state or region, but a
team of experts in combination is needed, not just one court
executive. States which have created a statewide court admin-
istrator without adequate foresight into supporting needs will
have caused themselves difficulties, particularly at local levels.
Court Management and the Administration of Justice 519
By 1975 each state should have adopted a plan for the relation-
ships it wants among the court executives in its judicial system.
States with highly centralized judicial systems serving only or
mostly urban populations may want central control from the
state capital through the office of the state court administrator. 20
States with less centralization in their judicial systems may
decide on loosely connective, even cooperative, relationships
worked out on an ad hoc basis from court to court. 21 No single
system should be forced upon any state as the model pattern
the appropriate solution depends upon political, economic, social,
legal and other practical factors which vary from state to state.
At least 29 states now have an office which exercises some
administrative powers in the state's judicial system. These
offices were conceived to be managerial in nature, but over time
they have tended to become staff specialists persons who give
advice to judges but do not exercise power daily over money,
people, programs, or space. The proper role of state court
executives needs further research and development to encourage
management innovation in state judicial systems. An even larger
role may be warranted for certain offices if the state judiciary,
legislature, and executive decide to centralize the entire admin-
istrative structure of the state judicial system. Whether this
centralization should or should not be done depends primarily
upon local and state initiatives.
2. Court Studies
The year 1975 should see court executives, judges and bar
associations participating in a wide variety of studies to answer
a host of questions. Some of these are: Shall we centralize or
decentralize the administrative structure of the courts? Shall
we have one or more computers to serve data processing needs?
Shall we have one budget or many? Shall we have one personnel
system or many?
Another class of studies would be primarily unit-oriented man-
agement studies. A court management study in the broadest
sense would be designed to delve into the operations of a par-
ticular court system. The originator of the first large-scale court
management study, Senator Tydings, believes the purposes
served would be these :
By the way of partial illustration, let me list for you some
of the ways that modern management techniques can be
utilized to assist the court in handling its business: (1) to
evaluate the forms, systems and procedures currently em-
ployed in court administration, for functions such as : filing
papers and records; preparing the printing of calendars;
520 Report of the Task Force on Law and Law Enforcement
notifying attorneys, litigants, and witnesses; calling cal-
endars and scheduling cases for pre-trial and trial ; impan-
elling and scheduling juries; indexing and docketing of
court actions; accounting for fees; and, transferring cases
to other courts ; (2) to determine what information is needed
for effective management of court operations; (3) to
appraise equipment needs for communications and for filing,
retrieving, processing and preserving cases, records and
administrative statistical data; (4) to review space utiliza-
tion and facility needs; (5) to provide an objective basis
for estimating judiical and non- judicial manpower require-
ments and for establishing compensation levels; (6) to
assess the adequacy of the new administrative organization
of the courts; (7) to evaluate the soundness of non- judicial
personnel policies and practices in such areas as recruit-
ment, training, and career development; (8) to review
opportunities for revision in statutes and court rules that
would result in administrative improvements without af-
fecting judicial decison-making prerogatives and the sub-
stantive rights of litigants. 22
The first such broad court management study has been under-
way since April 1968 in the District of Columbia. 23 Study of the
five courts in the District of Columbia two trial, one juvenile,
and two appellate has already produced recommendations and
action by the courts, especially in automation of the jury system
and improvements in handling lesser criminal offenses in the
court of general sessions in the District of Columbia. Many
recommendations some legislative, some asking for changes in
court rules, and some asking for changes in management prac-
tices have been made or will be forthcoming. Funding for this
study came from the Ford Foundation, the Russell Sage Founda-
tion, the Eugene and Agnes Meyer Foundation, and the Law
Enforcement Assistance Administration of the U.S. Depart-
ment of Justice in Washington. The District of Columbia study
is showing what can be done if the court system is subjected to
an objective and detailed analysis.
The first point of attack was the Criminal Assignment Court
system in the District of Columbia Court of General Sessions,
the major intake point for criminal cases both in the local Gen-
eral Sessions Court and the U.S. District Court. All serious
misdemeanors and most felony preliminaries are processed
through the Assignment Court. The volume of such cases has
been increasing rapidly with more judges assigned to hear
these case than are assigned to hear other types of criminal cases.
The study concluded that the Assignment Court system was
plagued by two overriding problems: (1) no one person was in
Court Management and the Administration of Justice 521
control of the caseflow process, and (2) there was a lack of
orderly, efficient, and standardized procedures for operating
the system.
To meet these problems, the study recommended that the Court
establish control over its calendar, develop reasonable and effi-
cient procedures and rules for conducting the Assignment Court,
impose strict control over continuances, and require consistent
and regular action from the prosecutor, defense counsel, and the
bench. These suggestions were grounded on three basic
premises :
a. In order for the Assignment Court process to function
effectively, the Assignment Court Judge must act as the
manager of the criminal trial system, and, as such, he should
control work loads and make trial assignments to the judges.
b. To fulfill this function, there must be standard pro-
cedures and a steady flow of information among the assign-
ment Judge, the Assignment Commissioner, and the trial
courts.
c. All participants in the system must cooperate by
adhering to these procedures. As officers of the court, the
defense attorneys and Assistant U.S. Attorneys have the
responsibility to abide by court rules and practices. The
court, of course, must enforce these rules for all parties
and for itself.
The recommendations included a set procedure for calling the
trial calendar and sending cases to trial, a new method of
appointing counsel for indigent defendants, and a standardized
arraignment and presentment procedure.
The court accepted most of these recommendations and began
implementing them in mid-October 1968 on an experimental
basis. The results from the experimental period, October-
December 1968, indicate that the new procedures are entirely
workable, and, if fully implemented, could produce substantial
improvements.
3. Law Schools and Centers for Administration of Justice
Law schools with a strong interdisciplinary outlook and strong
departments of management or administration in the university
or new multidisciplinary centers for administration of justice
should develop curricula for a court management profession. 24
There are potentially more than 300 full scale court executive
positions at least 50 at the state level, 250 at major urban
centers and additional regional court executives, in addition
to the need for high-ranking second or third men in particularly
large operations such as Los Angeles, Chicago, New York,
Philadelphia, and elsewhere. The federal courts can use about
30 such executives of various grades. Trained people will be
522 Report of the Task Force on Law and Law Enforcement
needed in all these vital positions in the court systems. The
peculiar management educational needs of courts to train those
on the job, to educate those coming along, and to educate others
in the system require an unusual faculty: interdisciplinary in
nature, urban and humanistic in outlook, with broad knowledge
of judicial institutions and other academic disciplines.
By 1975, educational institutions should begin to recognize
and evaluate the need to become centers for education of judges,
court executives, and others in the judicial system. Leadership
in the interdisciplinary development of thought about judicial
institutions will demand creativity. The state bar association,
the state court system, and others will look to the university for
leadership in producing an educated group of court officers.
4. Bar Associations
The members of state and local bar associations spend a great
deal of time in courts. They prosecute, defend, or bring claims
every day. Often they are the only source of leadership in court
reform, and each member of the bar has both a personal and
professional stake in seeing that the courts are improved. Yet,
the court system "belongs" to the whole bar and to the whole
public and is not just the special preserve of those who spend
the most time there.
The bar associations in city after city New York, Los
Angeles, Pittsburgh, Portland, Ore., Washington, B.C., to name
a few have promoted court reorganization. The tradition of
the bar associations is to press ahead it is the logical lobby
for the judiciary and it is often the only lobby. But the bar
should strive to unite other groups interested in judicial reforms.
Almost every state and local bar asociation should participate
in a court study, a court management study, or other review
of the judicial establishment. Such reviews should produce
suggestions for reform. Dialog between the bench and the bar
will be promoted by such studies. The role of the court executive
is to promote that dialog for the benefit and understanding of
the bench and bar and, ultimately, the public. Cities that are
now reaching new levels of achievement in the courts Port-
land, San Jose, and Pittsburgh, to name just three have found
new levels of bench-bar-public interchange which is of value to
the communities.
5. Laymen and Legislators
What do we as citizens want? Briefly, we want a court system
that proceeds with the people's business swiftly and fairly. But
how swiftly? Let us examine some of the suggestions.
Court Management and the Administration of Justice 523
Civil cases. Disputes between citizens should be terminated
finally within "six months after the action has commenced. . . ."
The appeal should be completed within another 6 months. 25
Felony cases. Serious crimes such as murder and rape should
take only a matter of days. According to the Standards Re-
lating to Speedy Trial of the American Bar Association, the
case should be dismissed if it cannot be tried within acceptable
time standards left to definition locally. Some states now provide
that felony cases must be tried within 90 to 120 days or be
dismissed. 26 The model timetable for felonies in the President's
Commission on Law Enforcement and the Administration of
Justice report is premised upon the distinction between needless
and necessary delay. The model timetable provides:
It [the commission] proposes that the period from arrest
to trial of felony cases be not more than four months and
that the period from trial to appellate decision be within
five months that, in short, the entire process take no more
than nine months. 27
Legislative articulation of time standards for the conclusion
of litigation is a principal hope for pressure to achieve rational
management of judicial institutions. The articulation of goals
what we should reach for in performance is very important to
sound court management. There are other tasks that legislatures
should take up, such as early definition of the practical conse-
quences for courts of certain legislative proposals (e.g., whether
the legislative proposal will generate more or less litigation). 28
But these tasks are not so important now as defining the goal-
setting the sights of all the potentially conflicting participants
in the administration of criminal laws.
CONCLUSION
By 1975, then, we should have the following results from a
national program to improve court management :
(1) Metropolitan, urban and regional court executives
with adequate and appropriate staffs of management spe-
cialists in most courts.
(2) Improved statewide central court executive offices in
each state.
(3) Universities teaching an interdisciplinary course in
court management and links between them and the judicial
and law enforcement institutions, with law schools deeply
involved.
(4) Bar associations promoting, cooperating, and super-
524 Report of the Task Force on Law and Law Enforcement
vising studies of courts by management consultants and
others.
(5) Lay groups suggesting and legislatures promulgating
specific legislation to set the goals for judicial speed in the
processing of cases.
(6) Court systems operating without delay, with humane-
ness, and with high regard for constitutional safeguards.
This program to improve court management, coupled with the
ABA Standards of Criminal Justice and the National Court
Assistance Act, could modernize our court systems. The real
question is whether our will to govern ourselves in this democracy
is equal to the challenge. As Thomas Jefferson wrote in 1816 :
[L]aws and institutions must go hand in hand with the
progress of the human mind .... As new discoveries are
made, new truths disclosed, and manners and opinions
change with the change in circumstances, institutions must
advance also, and keep pace with the times. We might as
well require a man to wear still the coat which fitted him as
a boy, as civilized society to remain ever under the regimen
of their barbarous ancestors. . . , 29
REFERENCES
1. Proceedings of the Attorney General's Conference on Court Congestion
and Delay in Litigation, Dept. of Justice, May 21-22, 1956 (Washing-
ton B.C.), at 162. Proceedings of the Attorney General's Conference
on Court Congestion and Delay in Litigation, Dept. of Justice, June 16
and 17, 1958 (Washington, D.C.), at 245.
2. Leonard R. Sayles, Managerial Behavior; Administration in Complex
Organizations (New York: McGraw-Hill, 1964) ; Amatai Etzioni, Mod-
ern Organizations (Englewood Cliffs, N.J.: Prentice-Hall, 1964); and
A Comparative Analysis of Complex Organizations (New York: Free
Press of Glencoe, 1961) ; George A. Steiner, Top Management Planning
(New York: Macmillan Co., 1969).
3. James W. Hurst, The Growth of American Law: The Law Makers
(Boston: Little, Brown & Co., 1950), at 85-193: Hurst stresses localism
in structure and independence of agencies auxiliary to courts, see par-
ticularly p. 453 and bibliographical notes for additional sources.
4. Institute of Judicial Administration, Calendar Status Study State
Trial Courts of General Jurisdiction Personal Injury Cases (269,
1968).
5. Annual Report of the Director of the Administrative Office of the
United States Courts 1968 (Washington D.C.: Government Printing
Office, 1969), at 269.
6. Id. at 258.
7. Id. at 184. See also Bryan, "For a Swifter Criminal Appeal To Pro-
tect the Public as Well as the Accused," 25 Wash. Lee L. Rev., (1968)
at 175, 178.
8. Annual Report of the Director of the Administrative Office of the
United States Courts 1959 (Washington, D.C.: Government Printing
Office, 1960), at 79.
Court Management and the Administration of Justice 525
9. Id. at 258.
10. Chicago, and Philadelphia and surrounding counties, are now managing
courts better. The following urban centers are implementing various
court managerial improvements: Seattle, Portland, Oreg., San Jose,
San Mateo, Los Angeles, Orange County, San Diego, San Bernadino,
Phoenix, Tucson, Wichita, Kansas City, Mo., St. Louis, Minneapolis,
St. Paul, Omaha, Pittsburgh, Boston, Baltimore, and New Jersey's
large urban centers. Not quite so advanced are urban centers in the
circle of Detroit, Cleveland, Columbus, Cincinnati, and Indianapolis, in
New York and New England areas, and in the Mid-Atlantic and South
(e.g., Miami, Atlanta, Washington, or New Orleans) or Southwest
(Dallas, Houston, or Oklahoma City) and in some of the upper Rocky
Mountain centers.
11. Nfw Jersey and Colorado are the principal exceptions. California and
Illinois have some direct management functions.
12. David J. Saari, "Open Doors to Justice An Overview of Financing
Justice in America," 50 Judicature 296 (1967).
13. Edward C. Gallas, "The Planning Function of The Court Administra-
tor," 50 Judicature 268 (1967).
14. Rudolph Driekurs, M.D., Prevention and Correction of Juvenile De-
linquency, Metropolitan Youth Commission of St. Louis and St. Louis
County (June 1, 1961) at 2-3:
"We are living in a transitional period between two phases of
mankind. Rapid and fundamental changes in our society have re-
sulted from the transformation from the autocratic into the present
democratic culture. In the former, all relationships were those of
the superiority of one individual or group over another. In con
trast, in a democratic atmosphere, all relationships are funda-
mentally those of equals. This change in human relationships is
responsible, more than anything else, for the prevalent discord of
our times. The effect of the gradual equalization of previously
dominant and submissive parties can be observed in any area of
contested power, in marriage, in industry, in race relations, and
in regard to children. Men were the first to lose their power within
the period. No "decision" by social agencies or other experts will
ever again "put Father back at the head of the family." As women
gained their equal status with men, which they often abuse for
gaining personal superiority, so they lost with their husbands the
power to "control" their children. Gaining equality increases fric-
tions and tensions, distrust and antagonism. The previously su-
perior group is afraid of losing its status and power, the previously
inferior group resents any trace of domination, and revolts against
being kept in an inferior and subordinate position. This revolt
can be openly expressed today because authority by society at large,
as it was in the past.
15. Quc'.ed in 13 Americcn Bar News 4 (Nov. 11, 1968) (Emphasis added).
16. Joseph D. Tydings, "Helping State and Local Courts Help Themselves:
The National Court Assistance Act" 24 Wash, and Lee L. Rev. 1
(Spring, 1967) ; Speech to Conference of Chief Justices on National
Court Assistance, 113 Cong. Rec. Aug. 17, 1967.
17. See 114 Cong. Rec., Feb. 14, 1968, at S. 1218, for proposed amendment
to guarantee insulation of state courts from federal intrusion.
18. Hearings before the Subcommittee on Improvements in Judicial Ma-
chinery, Committee on the Judiciary, U.S. Senate, 90th Cong., 1st Sess.,
on S. 1033, the National Court Assistance Act, Apr. 18, 19, and 21,
June 27, July 20, 1967, at 3. Thomas Jefferson expressed similar con-
cern in 1820 when he wrote: "The Constitution has erected no such
526 Report of the Task Force on Law and Law Enforcement
single tribunal, knew that to whatever hands confided, with the cor-
ruptions of time and party, its members would become despots."
Thomas Jefferson on Democracy, Saul K. Padover, ed. (New York: D.
Appleton-Century Co., 1939), at 99.
19. Arthur M. Schlesinger, The American as Reformer (New York:
Atheneum, 1968), at 96.
20. New Jersey has already started this farsighted program through the
office of the State Court Executive, Edward C. McConnell, one of the
leaders in the movement for improved court management for almost
two decades.
21. Senator Tydings has introduced a bill, S. 1509, 91st Cong., which
would provide decentralized management capability for the federal
courts. The Senate incorporated the essence of this bill into S. 952
which passed in June 1969 providing federal District Courts with
executive administrators.
22. Cong. Rcc., vol. 113, Aug. 17, 1967, at 23030; see also "Modernizing the
Administration of Justice," 50 Judicature 258 (1967).
23. See Court Management Study, Washington, D.C., Project Plan of Aug.
12, 1968.
24. Such a program is being tentatively explored at the University of
Denver.
25. Report of the Initial Meeting of the Executive Committee The At-
torney General's Conference on Court Congestion and Delay in Litiga-
tion, Department of Justice, Jan. 7, 1957 (Washington, D.C.).
26. American Bar Association Project on Minimum Standards for Criminal
Justice. Standards Relating to Speedy Trial. American Bar Associa-
tion, 1968, at 15.
27. President's Commission on Law Enforcement and the Administration
of Justice, Challenge of Crime in a Free Society (Washington, D.C.:
Government Printing Office, 1967), at 155-156.
28. Ronald L. Goldfarb. Problems in the Administration of Justice in
California, Report to the California Legislature (Feb. 1, 1969).
29. Thomas Jefferson on Democracy, supra note 18, at 67.
CHAPTER 22
THE ADMINISTRATION OF JUSTICE
UNDER EMERGENCY CONDITIONS*
The Kerner Commission 1 identified six major problems in the
administration of criminal justice during and in the wake of civil
disorders :
(1) Relatively few successful prosecutions of offenses
relating to civil disorders, resulting chiefly from the break-
down of normal police work in gathering evidence and in
building a case, caused by mass arrests, by the impossibility
of on-the-spot investigation, and by assembly-line booking
and processing of those arrested ;
(2) Great overcrowding of all facilities because of the
flood of arrests ;
(3) The dispensing of mass, not individual, justice;
(4) The setting of high, uniform, unindividualized bail
to avoid releasing arrestees ;
(5) Inadequate legal representation of defendants; and
(6) Harshness of sentences meted out during the course
of a disorder.
The Commission recommended that cities draft comprehensive
plans for the operation of a criminal justice system during
emergencies, providing for
(1) Review and overhaul of relevant legal provisions
and dissemination of information about legal provisions to
all personnel in the system;
(2) Revised charging and booking procedures and policy
decisions on matters like the use of summonses for minor
offenders to avoid clogging the sysem;
(3) Establishment of policies for release on bail or per-
sonal recognizance, and on sentencing;
(4) Arrangements for defense counsel; and
* This chapter was prepared by William A. Dobrovir of the District of
Columbia Bar.
527
528 Report of the Task Force on Law and Law Enforcement
(5) Adequate emergency detention and transportation
facilities.
The Kerner Commission dealt mainly with one kind of emer-
gency the mass, violent civil disturbance of which the arche-
type was Watts in August 1965, or Detroit in July 1967. This
kind of disorder has tens of thousands of participants, thousands
of arrests, major destruction of property, and often loss of
life. It can last from several days to a week or more. It ordinarily
requires the intervention of the National Guard or regular
armed forces to restore order. The participants are ordinarily
residents of the city with family ties there, young rather than
middle-aged (often many are juveniles) , employed, by and large,
without records of prior serious crime, and predominantly male
and black. The criminal acts committed are chiefly the looting
of business establishments, curfew violation, some arson, and
sometimes sniping or the possession of dangerous items like
molotov cocktails. The disorders have so far been confined
to inner-city ghetto areas inhabited by low-income black citizens.
A second kind of situation exists, however, which can also
cause emergency conditions in the administration of justice. It
is the mass political demonstration the Pentagon March on
Washington, B.C., in October 1967, the Century City demon-
stration in Los Angeles in June 1967, the Peace Parade in Chicago
in April 1968, and the demonstration during the Poor People's
Campaign in Washington, D.C., in June 1968. It may involve
from hundreds to thousands of participants. The criminal acts
that may be involved are confrontations with and alleged assault
on police, "disorderly conduct," refusal or failure to disperse
when ordered, and parading or demonstrating without a permit.
The participants are usually young, white, and are often students
from out of town. It has many variations the campus sit-in (in
which trespass may be charged) and various degrees of disorder-
liness. The emergency for the criminal justice system is much
less acute than in the mass disorder. Usually, the charges levied
are minor and susceptible to more rapid disposition, and the
number of arrests are much smaller.
The administration of justice under conditions of both mass
civil disorder and mass political demonstration becomes a formid-
able task, entailing as it does the process through which an in-
dividual goes from the time he is arrested by a police officer until
final disposition of the prosecution by dismissal, by acquittal, or
by conviction and sentence.
It falls into two major time periods during the disorder, and
afterwards: i.e., arrest and first court appearance (including ini-
tial charging and bail) ; and indictment, trial and sentencing.
Justice Under Emergency Conditions 529
ARREST TO FIRST COURT APPEARANCE :
THE MASS CIVIL DISORDER
The mass civil disorder is characterized by a tremendous in-
crease in the number of arrests and an overload of the resources
available to process them expeditiously, humanely, and efficiently.
In Newark, in July 1967, 1600 were arrested for riot offenses in
5 days; 2 in Baltimore, in April 1968, 5,500 were arrested in 7
days ; 3 in Detroit, in July 1967, 7,800 were arrested in 6 days
the normal figure for 6 months. 4
Usually in normal times, when a police officer makes an arrest
"on the scene" or "on view" (the usual case during a disorder),
he takes his prisoner to the police station, supervises the
"booking" of the prisoner, and prepares a report of the facts of
the offense while the prisoner's name and other identifying char-
acteristics are being recorded. The officer accompanies the
prisoner to court for his first appearance and testifies, then or
later, to the identity of the prisoner and to the facts of the offense.
During a disorder, however, the officer is desperately needed
on the street to aid in restoring order. Hence, without special
arrangements, the police must choose between either sending
arrestees to precincts or stations en masse and without the
arresting officer, thus seriously jeopardizing the likelihood of
successful prosecution, or following the usual procedure and
losing for several hours the services of the officers on the street.
In Chicago 5 and in Washington, D.C., 6 in the disorders of early
April 1968, many officers failed to arrest offenders because they
feared that to make an arrest would require them to leave the
scene of disorder in order to carry out booking procedures. In
both cities the Police Departments adopted the expedient of
having a single officer sign and swear to complaints. In Chicago
this became a defect leading to the dismissal of many cases ; in
Washington the court approved the procedure so long as the
arresting officer would personally testify later.
In Chicago and in Baltimore, offenders arrested by National
Guardsmen could not be prosecuted either because the arresting
Guardsman failed to appear for later proceedings or because his
indentity was not known. The Chicago experience was not re-
peated in Washington where police officers accompanied every
group of Guardsmen, and where anyone arrested by a Guardsman
was held on the scene until a police officer arrived.
Almost uniformly, complaint and arrest forms were too long
and cumbersome to fill out properly under the press of emer-
gency; and the lack of facilities to photograph prisoners meant
the failure of identification later.
In the various cities, police departments adopted different
ad hoc procedures with varying success. In Detroit, Polaroid
530 Report of the Task Force on Law and Law Enforcement
cameras were made available to photograph together the arrestee,
the officer, and any evidence. 7 In Chicago, the State Attorney's
Office had mimeographed thousands of standardized complaint
forms, on which were quoted the probably relevant statutes
from which the officer could designate the one applicable. 8 In
Washington, B.C., the driver of the police wagon picking up
arrestees and transporting them to the station took notes, de-
scribing which prisoner went with which officer and what evi-
dence, if any. The arresting officer returned to the station after
his tour of duty and attempted to sort out his arrestees. 9
One precinct in Washington set up arrest teams with trucks.
The team would sweep an area, and one of the team, designated
as an arresting officer, would do all the booking when the team
returned with a full load ; the other officers on the team could
return to other duties. 10
Lack of the physical facilities needed to move and to house
the large numbers of arrestees was a problem felt in all cities
during disorders. Detention facilities were everywhere over-
crowded, and sanitary problems were encountered.
The shortage of vehicles to transport prisoners from the
scene of the arrest to the station required officers to wait for
long periods with arrestees, in dangerous circumstances, until
a van or wagon arrived. Sometimes prisoners were released
when officers had to move on to the scene of another outbreak
before the wagon arrived.
Normal procedures in most cities call for booking of arrestees
and interim detention in local police stations or precinct build-
ings. Such buildings have no space for large numbers of arrestees.
Cells, as a result, were vastly overcrowded. In Chicago, in April
1968, the problem was handled by having all arrestees taken to
central police headquarters for booking; thus action was taken
not only to speed the process, but also because of fear that
local precincts might be attacked and prisoners freed. The plan
was made feasible by the ready availability of magistrates. 11 In
Baltimore, where station houses include courtrooms, the court-
rooms were used as detention space after court had closed. 12 In
Washington, the cell block in the U.S. Court House was pressed
into service as a central booking area. 13
Station-house screening of arrestees by seriousness of offense
and prior criminal record was virtually impossible. In Chicago,
the use of police officers from all over the city meant that often
they were unfamiliar with the neighborhood and unable to
separate known "troublemakers" from responsible citizens. 14
Lack of transport from precinct to court, and overcrowded
detention facilities at court, were serious problems. Feeding
prisoners, making sure that they were properly identified many
gave false names and then could not remember the name they
Justice Under Emergency Conditions 531
had given when they were called out and matching papers with
prisoners were also serious problems in many cities.
ARREST TO FIRST COURT APPEARANCE:
THE MASS POLITICAL DEMONSTRATION
Unlike the mass civil disorder, the volume of arrests during
a political demonstration is rarely great enough to cause the
same kind of problems. The Poor People's Campaign in Wash-
ington tested a newly devised multicopy arrest form and the use
of Polaroid cameras. They worked fairly well. 15 But only 644
persons were arrested altogether, at Resurrection City, at the
Capitol grounds where the arrestees set out to be arrested and
cooperated with the police and for curfew violation that night.
In Chicago, the April 27 Peace March, with 6,500 participants,
resulted in only 80 arrests. 16 During the week of the Democratic
Convention in Chicago, 641 were arrested. 17 In Los Angeles, at
the Century Plaza demonstration in which 15,000 participated,
only 51 were arrested. 18
ARREST TO FIRST COURT APPEARANCE :
THE KERNER COMMISSION RECOMMENDATIONS
The Kerner Commission, the International Association of
Chiefs of Police, the American Bar Association, and others have
made recommendations for resolving some of the difficulties
outlined above. In summary they are :
(1) Establishment of field booking facilities at the scene
of the disorder, either in available buildings or as mobile
booking stations in buses or similar vehicles. This involves
having the necessary extra equipment on hand and available
for immediate deployment.
(2) Setting up simplified procedures for booking, includ-
ing the use of a simplified multicopy field arrest form. Such
a form is in use by the Justice Department for mass political
demonstrations. A variation was used with some success by
the Washington, D.C., Police in the Poor People's Campaign
Protest March in June 1968. The use of Polaroid cameras
and of video tape recorders has been urged, as well as
uniform bags or boxes for the retention of evidence.
(3) Advance provision for using commercial or even mili-
tary vehicles to solve the shortage of transport.
(4) Advance planning for screening arrestees to deter-
mine those who (like curfew violators) may safely be re-
leased at the station house with a summons, those who will
be allowed to post station-house bail or collateral, and those
532 Report of the Task Force on Law and Law Enforcement
who will be held for appearance in court. Since the appro-
priate disposition will ordinarily depend on the charge, prose-
cutors would be needed at the station house.
Of the cities (over 40) that have experienced a major or
medium disorder, only a few like New York, Kansas City,
Denver, Syracuse and Washington have adopted any plan at
all; and the Los Angeles and Philadelphia District Attorneys
have issued instruction on free speech demonstrations. 19
Since publication of the Kerner report, the nation has suffered
more major disorders. Further delay by any city in planning for
future emergencies only compounds the problem.
FIRST COURT APPEARANCE :
THE MASS CIVIL DISORDER
In normal times, after an arrestee has been processed by
booking, fingerprinting, photographing and the like, he is taken
before a judge or magistrate. This initial appearance in court
is called presentment or arraignment; to avoid confusion with
later arraignment proceeding it is referred to here as "first court
appearance." At this time the defendant is advised of the charge
against him, of his right to employ counsel or to have counsel
appointed to defend him, and of his right to remain silent. In
some jurisdictions, counsel is appointed to represent him at
the first appearance. Bail is set, and a date for the defendant's
next appearance is designated.
Three major problems have been evident at this stage of the
criminal process: first, the court must hold hearings without
undue delay, and the prosecutor's office must prepare the neces-
sary charging papers, despite a far greater number of defen-
dants; second, the prosecutor must determine what charges to
make against the defendants ; third, the courts must decide what
bail to set and what standards to apply in setting bail.
In the handling of court emergencies resulting from masses of
arrests, the outstanding fact is the effort by all involved
judges, prosecutors, clerks, and defense attorneys to work long
hours, around the clock if necessary, to bring all defendants
before a judge with the least delay. These efforts were hampered,
however, by grossly inadequate physical facilities and the failure
of coordination of various elements. Too often, the emphasis on
speed resulted in failure to afford defendants their full measure
of procedural rights. And, curiously, there is little difference in
the performance of cities in emergencies before and after the
publication of the Kerner Report on March 1, 1968.
The Recorder's Court in Detroit in July 1967 worked around
the clock. Fifteen or twenty defendants appeared at a time. They
Justice Under Emergency Conditions 533
were without counsel since Michigan does not provide appointed
counsel at the first appearance, "arraignment on the warrant."
The proceedings were rushed, and often advice to defendants of
their rights was cursory at best. The court pleaded the need for
haste to process the flood of defendants. Yet the judges of the
Wayne County Circuit Court had volunteered themselves, their
clerical personnel, and their buildings to help and were refused.
The organized bar made little effort, at first, to provide counsel
for defendants. Finally, the Dean of the Law School of the Uni-
versity of Detroit organized a group of volunteers but the
judges (with one notable exception) were opposed to allowing
the volunteers to appear and represent defendants, fearing it
would delay the processing. 20
In Newark, in July 1967, defendants appeared one at a time,
and were presented by counsel, usually volunteers. This caused
no particular delay, for only "a few hours" elapsed between
arrest and first appearance. 21
The experiences of three cities, Chicago, Washington, D.C.,
and Baltimore, in disorders in April 1968, a month after publi-
cation of the Kerner Report, offer considerable contrast.
Chicago 22 had adopted a sketchy plan for dealing with masses
of arrests. It provided that all persons arrested from 10 a.m. one
day to 10 a.m. the next were to be "returnable" at 1 p.m. the
second day. When the volume of arrests began to assume emer-
gency proportions, the Chief Judge of the Cook County Circuit
Court set up four courts at a central location (the same location
where, as we have indicated, defendants were brought for cen-
tralized booking).
During the April 1968, disorder in Chicago, the Public De-
fenders Office, apparently overly confident of its ability to per-
form its duties even in the face of mass arrests, did not welcome
volunteers, many of whom were turned away from the court.
The Public Defender's Office staff was placed on shifts around
the clock, and represented almost all defendants who appeared
in court. However, the quality of representation suffered ; rarely
were defendants interviewed before their appearance, and, with-
out interviews, the judges had inadequate information about
the defendants. Moreover, as in almost all cities during emer-
gencies, criminal records were not available.
In Washington, 23 considerable discussion had prevailed of how
best to handle an emergency in the criminal justice system, but
no plans had been made. On Friday morning, April 5, the prob-
lem of processing persons arrested in the disorders on Thursday
evening, prompted the Chief Judge of the D.C. Court of General
Sessions to call a meeting of the judges. The Chief Judge then
set up a Special Arraignment Court ; otherwise, the court would
continue on a "business as usual" basis. This soon became im-
534 Report of the Task Force on Law and Law Enforcement
possible, and the court was put on around-the-clock operation.
The judges cleared their regular calendars to make way for riot
arrestees, and judges were assigned for evening and weekend
duty.
Guidelines were developed for the handling of disorder cases,
each case individually. The court would advise the defendant of
the charge against him, warn him of his legal rights, appoint
counsel for his defense, and make a bail determination. Immediate
trials and preliminary hearings were found to be impractical
because witnesses were difficult to find, and police officers, who
would have to identify the person charged and testify at the
hearing or trial, were needed on the street to restore order.
Pleas and jury trial requests in misdemeanor cases were accepted,
but virtually all trials and preliminary hearings were continued.
The typical hearing was conducted as follows :
(1) The clerk read the defendant's name from the lockup
list.
(2) The judge appointed an attorney present in the
courtroom (usually volunteer lawyers from firms with civil
and federal practices) to represent the defendant at the
hearing.
(3) The attorney was given the opportunity to confer with
the defendant in the cell-block in the court's basement or
outside the court room.
(4) When the conference was completed, the case would
be called and the attorney and defendant would appear be-
fore the judge.
(5) If the charge was a misdemeanor, the attorney would
plead "not guilty," request a jury trial, and have a date set
for trial. In felony cases, the lawyer would request a pre-
liminary hearing, which would be continued to a definite
date.
Appeals for volunteer attorneys were broadcast on radio and
television and spread by telephone and by word of mouth. Indeed,
at many times during the disorders there were more attorneys
than persons to defend.
Bottlenecks were encountered. The clerk's office and the prose-
cutor's office fell behind in the preparation of charging papers,
and often papers could not be matched with prisoners.
Proceedings in Baltimore 24 in April were unique, in that trials
were held during the disorder. Indeed, almost all the riot cases
were tried immediately in a kind of summary proceeding.
Two court systems the Municipal Court, which sits in various
police station houses around the city, and the Supreme Bench
of Baltimore City operated almost around the clock. Trials
"were conducted in the crowded, emotion-filled courtrooms . . .
Justice Under Emergency Conditions 535
with armed soldiers on guard, and in the midst of the sounds,
sight, and smells of mass disorder," 25 and chiefly at night, when
witnesses could not be found. Vital information like the police
officer's arrest report was missing.
Defendants were brought into court in groups of 50 to 100.
Facilities for defense lawyers to interview defendants were
greatly overcrowded; often the corridors and courtrooms were
used, and attorneys interviewed defendants in the rear of the
courtroom as trials proceeded in the front. Access to the court-
rooms by friends, relatives, witnesses and bondsmen was seriously
impeded. And there was no organization of volunteer attorneys.
Pressure forced both sides to proceed immediately to trial.
Bail was set at $500 for curfew violation and $100 or more for
larceny ; but because bondsmen were unavailable, most defendants
went to jail. Most curfew defendants, therefore, agreed to a
"stipulated" trial. Offenders charged with other offenses accepted
immediate trial on reduced charges of curfew violation or dis-
orderly conduct rather than remain in jail pending later trial.
FIRST COURT APPEARANCE :
THE MASS POLITICAL DEMONSTRATION
The Poor People's Campaign in Washington, D.C., 26 resulted in
644 arrests. After expiration of the campaign's permit, 123 re-
mained at Resurrection City and were arrested ; 235 marched to
the Capitol and were arrested there, and 286 noncampaigners
were arrested in the city for disorderly conduct and curfew
violation.
The D.C. Court of General Sessions, forearmed by its experi-
ence in April, stood ready to handle the flow. The Chief Judge
offered to try all offenders immediately but the offer was declined
by the campaign leadership. As a result, from 7 :30 p.m. to the
early morning hours, the campaigners were arraigned, bail was
set (which none but a few of the leaders made), and the
prisoners remanded for trial the next day.
At that time the campaign leadership advised the defendants
to plead nolo contender. In the course of 2 days, all were sen-
tenced, usually to terms of 5 to 20 days. Since many lawyers who
had experienced the frustrations and delays of April declined to
repeat the experience, it was difficult to get enough volunteer de-
fense counsel.
No "papering" problems were experienced the charges were
simply either demonstrating without a permit, or unlawful
assembly, and there were no problems of identity or evidence
primarily because the defendants had deliberately set out to
be arrested and sentenced in order to publicize their cause.
Serious problems have arisen in other cities because of police
536 Report of the Task Force on Law and Law Enforcement
and judicial hostility to demonstrators. In Chicago, in the April
peace march, arrestees were forbidden to make telephone calls,
their cameras were taken and the film exposed, and many were
held, seemingly deliberately, for hours before they could post
bond and be released. 27 The events in Chicago in August have
been fully recounted in the Walker Report to this Commission. 28
Also, other problems have persisted. Despite the anticipation
of mass arrests in connection with the October 1967 demonstra-
tion at the Pentagon, the delay between arrest and first appear-
ance was significant. 29 Courts, it seems, are never in any great
rush to process those who deliberately violate the law.
INITIAL CHARGING: THE MASS CIVIL DISORDER
The difficulties faced by prosecutors during emergencies come
into sharp focus at the time that initial charges must be prepared
("papered") against the persons arrested. Two matters stand
out: first, because police officers are needed on the street and
arrest reports are sketchy, prosecutors are without the usual
information needed to decide intelligently what charge to make ;
second, it is easier to lower a "high" charge (of felony, for
example) than raise a "low" charge, and "high papering" sets
high bail and keeps rioters from further disorder.
This procedure resulted in most cities in a very high proportion
of felony charges against defendants arrested in the apparently
typical disorder activity looting retail stores and in accusations
of "overcharging." It seems fair to say, however, that with
"overcharging," the fault did not lie at the initial stage, but in
failure of the prosecution to review and reduce charges at later
stages of the criminal proceedings.
In Detroit 30 in July 1967, for example, 75 percent (3,230) of
the 4,260) defendants brought before the Recorder's Court
were charged with such felonies as "Entering Without Break-
ing With Intent to Commit Larceny." By the time of a meeting
of the National Association of District Attorneys held in Chicago
in February 1968, 31 the Detroit Prosecutor's Office had come to
admit that this policy was a mistake. Of nearly 1,63.0 cases dis-
posed of by that time, 961 had been dismised altogether and 664
had been disposed of by a guilty plea to misdemeanors ; only 2 of
those accused had been tried and convicted of felonies.
The NADA meeting discussed not only the problems of Detroit,
but those of Newark and Los Angeles (Watts). In Newark, 73
percent of the defendants had been charged with larceny, break-
ing and entering, or receiving stolen goods "looting" offenses.
In the Watts riot, 80 percent of all defendants were charged with
felonies, nearly all with burglary; later, these charges were
reduced in most cases.
Justice Under Emergency Conditions 537
The Prosecutor's Office in Chicago, apparently impressed with
the problems noted at the NAD A meeting, charged 1,300 de-
fendants with misdemeanors and only 850 with felonies in the
April 1968 disorders. The typical charge was burglary, even
though Illinois has a looting statute. The prosecutors, it seems,
felt that burglary would be easier to prove than looting, which
requires a showing that the normal security of property is not
present by virtue of a riot.
In Washington, B.C., 32 which has no looting statute, the U.S.
Attorney (who has authority over all but petty offenses) decided
to charge all defendants caught "looting" with second-degree
burglary for the purposes of the first court appearance. 85 percent
of all defendants charged were charged with felonies. But after
the riots had subsided and additional information could be
gathered by the prosecution, it was expected that each case
would be reviewed for possible change in the charges. Given the
expectation of later review, the initial-charge policy made sense.
In the absence of enough information from the police about the
offense and about defendants' criminal records, "papering high"
assured maximum flexibility for the prosecution in the subsequent
disposition of the case. It allowed the prosecutor, when more in-
formation became available, to proceed with the felony charge, to
"break down" to a misdemeanor or to drop the charge if evidence
could not be produced.
Given such review, the initial charge would not matter too
much. The objective was to get defendants processed promptly,
even in the absence of the police officer. Yet, in Washington,
D.C., and in other cities, the review process where there was
one failed to perform its function.
INITIAL CHARGING :
THE MASS POLITICAL DEMONSTRATION
The typical political demonstration, even where mass arrests
result, creates few "papering" problems. Likewise, there is
usually little difficulty in picking the appropriate charge in
most cases disorderly conduct, refusal to move on or demonstra-
ting without a permit. Often the offense, one for which the
arrestee can post a small sum as collateral, and forfeit, avoids
any further processing burden. The sum posted as collateral,
frequently from $10 to $25, thus serves as the defendant's fine.
Frequently, however, the hostility demonstrated by police
against political demonstrators has emerged in the form of
overcharging. Demonstrators who have gone limp, for example,
have been charged with "resisting arrest." Youths who have
raised their hands to protect their heads from the blows of police
batons have been charged with "assault on a police officer."
538 Report of the Task Force on Law and Law Enforcement
Although these charges may eventually be dropped, the effect
limits the opportunity of those arrested to regain their freedom
and it presents a distorted statistical picture of the conduct of the
demonstrators.
BAIL: THE MASS CIVIL DISORDER
The most important immediate decision made at the first court
appearance is the setting of bail. In most cities (with the notable
exception of Baltimore), further proceedings in civil disorder
cases-preliminary hearings and trials-were postponed for days,
weeks, and months. The conditions upon which the defendant
could obtain his release pending trial became all-important to
him, to his family and employer, and to the over-burdened
facilities available for detention of prisoners pending trial.
The matter of bail has been the reef on which the courts and
prosecutors in nearly every city faced with an emergency have
foundered. In nearly every city the primary motivation of the
courts in setting (and prosecutors in requesting) bail conditions
has been to keep defendants arrested during a disorder locked
up to prevent their return to the disorders.
In Detroit, 33 in July 1967, for instance, 74 percent of the bonds
were higher than $5,000: ". . . the judicial policy during the
early stages of the disorder was to set extremely hi^h bail. 4 ' The
public prosecutor stated that his office would ask for bonds of
$1,000 and up on all persons arrested "so that even though they
had not been adjudged guilty, we would eliminate the danger of
returning some of those who had caused the riot to the street
during the time of stress." 34 One Detroit judge was quoted as
saying: "We will, in matters of this kind, allocate an extraor-
dinary bond. We must keep these people off the streets. We
will keep them off." As one judge who dissented at the time from
the policy later wrote, there was "a wholesale denial of the con-
stitutional rights of everyone who was arrested during that
disturbance." 35 He unequivocally ascribed the harsh procedures
to race prejudice.
The policy flatly one of prevention detention was adopted at
the insistence of the District Attorney, who later stated :
When it became clear on Sunday night that a full scale riot
was in process, I publicly announced that I was recommend-
ing a $10,000 bond on all those arrested for looting. The
courts generally followed that recommendation, and some
criticism ensued in the form of statements to the effect
that the riot was extraneous to the individual consideration
of bond and to the point that it was considered by some to
be excessively high. I felt then, and I still feel, that the
court's response to my recommendation was justified. 36
Justice Under Emergency Conditions 539
As a result of the policy, only 2% compared with a usual 26-30
percent of defendants were released on their own recognizance,
even though most defendants had strong community ties, jobs,
and no criminal record. 37 Unbelievably, some bonds were set as
high as $200,000.
In the Los Angeles Watts 38 riots in August 1965, bond on rioters
arrested was set at a minimum of $3,000, again at the instance of
the District Attorney, who reported that he "took the position
that to release a large number of these arrested persons on bail
could result in their returning to the riot area and increasing
the difficulty of control," and who indeed had attempted to
persuade the court not to set bail at all.
In Newark 39 in July 1967, the courts set uniformly high bails :
$2,500 for run-of-the-mill looters charged with breaking and
entering, $500 for curfew violators, and $250 for those charged
with "loitering." In Newark, however, as the disorders began
to subside and as the jails filled to overflowing the Newark
Legal Services Project urged the judges to begin reviewing
bonds to release defendants on their own recognizance ; hearings
were held in the jails and neighborhood Legal Service Program
personnel, volunteers, and law students interviewed defendants
and checked their community ties. As a result, more than two-
thirds of those held in jail on money bonds were later released
on their own recognizance.
The pattern seems to have been followed around the country. 40
In Tampa and in Rockford, 111., minor civil disorders caused
unusually high bail to be set, and resulted in the preventive
detention of alleged rioters. In New Haven in July 1967, release
on recognizance at the precinct (provided by Connecticut law)
was "suspended" pursuant to an informal agreement between
the Bail Office and the Chief of Police; but as the jails became
overcrowded, the policy was reversed. In court, the judges began
by setting unusually high bonds ; and as it began to appear that
the bondsmen were refusing to write bonds for rioters at all, the
court adopted a general policy of release on recognizance. Thus,
most arrestees (estimated at 80 percent) spent no more than
night or a day and a night at jail. Moreover, out of 550 riot
arrestees, apparently no more than one or two were arrested a
second time.
As the Kerner Commission noted, "No attempt was made in
most cases to individualize the bail-setting process." 41 The Com-
mission strongly recommended efforts to individualize bail set-
ting, to get more background information on defendants and to
ensure that defendants had counsel when bail was set. While
equivocating on the issue of preventive detention vel non, the
Commission urged the use of conditions short of incarceration,
540 Report of the Task Force on Law and Law Enforcement
like third party custody and daily reporting to a police station,
to ensure nonparticipation in further rioting.
Despite these recommendations, however, little changed. In
Baltimore 42 in April 1968, for example, the study of the admin-
istration of justice in the wake of the disorder commented :
Very few defendants were released on their own recogni-
zance, and rarely was there time or inclination on the part
of the judges to hear a defense plea for a bail geared to
the circumstances of the individual defendant. 43
Bail was set at $500 for curfew violation, and at correspondingly
higher figures for other charges.
The policy operated to detain defendants in jail which, the
Baltimore study suggests, was the judges' intent. Bondsmen
were largely unavailable, and the curfew kept friends and
relatives from reaching defendants. As a result, only 99 out of
345 curfew defendants not tried immediately obtained release
on bail. Many others (the estimate is as high as 3,000), as we
have seen, were pressed by their inability to obtain pretrial re-
lease into immediate, "stipulated" trials.
In Chicago 44 in April 1968, normal bail rules were similarly
suspended. As in New Haven, the usual stationhouse bail pro-
cedures were ignored; all defendants were held until they ap-
peared before a magistrate. Money bond was set in nearly every
case, ranging from $1,000 for disorderly conduct to $5,000 as the
minimum for a looting charge. Some bonds were set as high as
$100,000. In 82 percent of misdemeanor cases bond was set at
over $1,000. There "was little individual variation in the setting
of bonds . . . the magistrates [were unwilling] to allow a rioter
to be free, under a nominal bond, to return to the scene of the
riots." 45
Apparently not until a mandamus action was filed and the
Cook County (the black) Bar Association put pressure on the
Chief Judge of the Circuit Court of Cook County did the court
begin on April 14, ten days after the disorders began and over
a week after they were over to hold bond review hearings. 46
This resulted in reduction of bonds in 84 percent of the 481 cases
reviewed.
According to figures compiled by the University of Chicago
Law Review, 47 out of 2,200 defendants who appeared in court,
870 spent at least 3 days in jail, 400 spent at least a week in jail,
and 60 were still in jail on June 12, 2 months after the disorders.
A policy of allowing defendants to post 10 percent cash, rather
than a surety bond, was uniformly followed but even those few
defendants who could post 10 percent of the high bonds, could
not do so at court but had to post cash at the jail after their
remand to custody.
Justice Under Emergency Conditions 541
Some judges later admitted frankly that they set bonds at
this level for the purpose of detaining suspected rioters. In
Chicago, too, the prosecutor's recommendation was significant,
and the high bail policy was in part the result of
the kind of political pressures under which the judiciary
was operating. On Saturday night, April 6, an assistant
public defender was in the midst of a bond hearing when the
Corporation Counsel, Richard Elrod, came up to the judge
and told him that no bonds were to be set below $1,000,
whereas previously some variation in the bonds had been
evident and some individual consideration given. 48
The harshness of the judges in Chicago should not have been
surprising. Around 250 persons had been arrested on charges
of looting during a snowstorm in January 1967. Average bail set
was $14,000, compared with a normal range of $1,500-$3,000.
Defendants were unrepresented by counsel. Continuances of
about 3 weeks meaning 3 weeks of pretrial jail were uniformly
granted at the request of the prosecution. When preliminary
hearings were finally held, bail was reduced to $250-$!, 500
and most defendants posted bond and were released. Judges and
prosecutors admitted that the purpose of high bail was to teach
the accused looters a "lesson."
In Washington, B.C., in April 1968, 53 the question of setting
bail conditions intended to guarantee nonreturn to the scene of
the disorder was clearly articulated, and an expressly defined
policy adopted. While this occurred in other cities too, the matter
was etched in sharp relief for Washington by the Bail Reform
Act of 1966, an act of Congress in force in Washington since
1967. The act provides that the preferred release condition is not
money bail but release on personal recognizance. The judge at
the defendant's first appearance should look into the defendant's
community roots, as revealed by information supplied by the
D.C. Bail Agency, and if his family and local ties, employment,
prior record and the nature of the offense indicate that he is a
good risk to return for trial, he should be released on his own
recognizance. The judge can impose a number of other conditions
should he decide that personal recognizance alone is not suffi-
cient; but the least favored of these is a money bond.
As the disorders waxed in the city on Friday, April 5, de-
fendants began to appear in court. The U.S. Attorney, the chief
prosecutor of all but petty offenses in Washington, advised the
judges, first privately and then in open court, that unless a
reliable third party would undertake to ensure the defendant's
nonreturn to the disorders, money bond should be set. This policy
was adopted, and for the next 2 or 3 days many of the judges
uniformly set money bond $1,000 for the looting felony, second-
542 Report of the Task Force on Law and Law Enforcement
degree burglary, and $500 for misdemeanors where no third
party could be produced.
While the money amounts set were modest, they nevertheless
effectively detained defendants 75 percent of those for whom
money bond was set went to jail. Either they could not raise the
bond premium, or they could not find a bondsman the white
bondsmen, sympathizing with the looted merchants, apparently
engaged in a private policy of preventive detention.
The Court of General Sessions did, however, set up prompt
machinery for bond review, and, one way or another, half of
the defendants remanded to jail had obtained release after less
than 3 days.
In attempting to evaluate the need for and the utility of a
policy of preventive detention, even one in the modified form
adopted in Washington, some facts stand out:
(1) Of a total "riot population" of 20,000, less than
7,000 were arrested, and less than 2,000 were taken to court.
The court's opportunity to prevent a rioter from rioting a
second time, therefore, was less than one in ten.
(2) Only 21 persons arrested for a relatively serious
offense during the period of maximum disorder were re-
arrested.
(3) Very few persons were charged with offenses beyond
ordinary looting arsonists, breakers, instigators, or wiel-
ders of molotov cocktails, for example.
(4) Judges varied in the quality of their treatment. In-
terestingly, the widest disparity in bail orders came from
two judges who sat at the same time, Sunday night, April
7. One held every one of the individuals who appeared
before him to money bond; the other released 90 percent
of those before him on personal recognizance or in the
custody of a third party.
(5) Nevertheless, compared with the results in Detroit
and Chicago, for example, Washington was a model of
restraint. Even on Saturday, April 6, at the height of
activity, some 32 percent of the defendants who appeared in
court were released on personal recognizance or in third-
party custody. Overall, from April 5 through April 10, 43
percent of the defendants were so released.
BAIL: THE MASS POLITICAL DEMONSTRATION
What is the bail for political demonstrators? The offenses
charged tend to be petty, indicating a low bond or personal
recognizance ; but demonstrators often come from out of town,
posing the danger of flight. Trials can usually be held quickly,
Justice Under Emergency Conditions 543
however. The procedure usually followed in Washington, B.C.,
seems exemplary : it allows demonstrators to post a small sum
$10 to $25 as collateral at the police station in order to obtain
immediate release.
FIRST COURT APPEARANCE (INCLUDING CHARGING
AND BAIL) : RECOMMENDATIONS
The clogging of the courts by the flood of persons arrested in
civil disorders indicates not only the inability of the system to
cope with an abnormal load, but the antiquity and clumsiness of a
system that clogs unnecessarily even in normal times. A major
overhaul is long overdue, one that will replace breaking judicial
machinery with modern data processing and retrieval techniques.
Pending such a revolution, much can be done to plan for emer-
gency volume. Detention facilities should be set up near the
courts; if this is not possible, first appearances should be held
in appropriate facilities near where arrestees are detained.
Emergency facilities and personnel are needed to ensure an
unimpeded flow of papers, especially charging papers and prior
criminal record information. Municipal clerical employees not
needed elsewhere can be detailed to the Police Department and
prosecutor's offices, with typewriters, to assist; and a kind of
"reserve" of former prosecutors can be set up, if more prose-
cutors are needed to speed "papering."
The right to counsel is all-important, even more important
during an emergency than in normal times, because for many
people it is their first experience of the criminal justice system.
Failure to treat them fairly to visibly treat them fairly may,
as the Kerner Commission pointed out, exacerbate the hostility
that is itself a cause of outbreaks of disorder.
To the credit of the bar, everywhere in emergencies, lawyers
volunteered to defend arrestees without expecting any recom-
pense. Moreover, the lawyers should be given every opportunity
to interview defendants and to investigate and verify the infor-
mation which defendants give them.
As for bail, whatever else may be said about detaining
rioters in jail until order is restored, the use of abnormally high
money bonds, either openly or in disguise in order to effect
detention, is an injustice. Indeed, given the lack of earlier
criminal history (which bondsmen look for) and the relative
indigence of riot defendants not to mention the usual absence
of bondsmen during disorders setting money bond becomes
even more unfair during emergencies than in normal times.
No evidence exists from any of the cities to show that the
detention of arrestees made any significant contribution to the
restoration of order; as a matter of fact, study of the policy of
544 Report of the Task Force on Law and Law Enforcement
modified preventive detention in Washington, D.C., in April
1968 indicates that the wrongs of such a policy outweigh its
benefits.
The need for at least two improvements is primary: first as
noted, the establishment of facilities for the gathering of infor-
mation that will permit an intelligent decision on whether or
not to release the defendant on recognizance; second, reliance
on non-money conditions like third party custody, as the primary
measure to ensure return to trial and if there be any justifi-
cation for this fear ensure non-return to the riot.
AFTER THE EMERGENCY :
THE DISPOSITION OF THE PROSECUTIONS 51
After a disorder has subsided and public attention focuses on
other matters, the prosecutor's office and the courts must cope
with the additional load of cases that began with arrests during
the period of emergency. By then, time does not pressure to
dispose of the cases ; the level of the charge, the reduction of the
charge, when to seek trial, when to allow pleas, and, finally,
sentencing these can be reflected upon before rendering de-
cisions.
The Kerner Commission, in its recommendations respecting
the ultimate disposition of riot cases, urged the postponement
of the important steps (preliminary hearing, plea bargaining,
trial, and sentence) until after the restoration of order, the cool-
ing of passions, and the quick dispositions of petty offenders.
Except in isolated instances, like Baltimore, postponement has,
of necessity, been the rule and the contrary problem, delay, has
been serious.
To illustrate, in Detroit, in July of 1967, 52 75 percent of all
defendants were charged with felonies. As of April 30, 1968, out
of 3,230 felony cases, 1,198 had been dismissed, 1,211 had
pleaded guilty to lesser offenses, and 480 awaited trial. The rest
were fugitives. Of only 17 tried, 9 were convicted and 8 acquitted.
Faced with "heavy evidentiary burdens" and "cluttered trial
dockets" in felony cases, the prosecutors in Detroit pressed for
guilty pleas in exchange for reduction of the charge the old
practice of plea bargaining, but carried on wholesale.
The Michigan Law Review study 58 indicates that the plea bar-
gaining was not bargaining as such, but a "take it or leave it"
offer based only on whether the defendant had a prior criminal
record. Guilty pleas were encouraged by a policy of the court
of sentencing those who pleaded guilty to time already served.
Available statistics show that of 666 defendants who were
sentenced, all but 22 were sentenced to no additional time in jail;
and of the 22, only 10 were sentenced to more than 90 days.
Justice Under Emergency Conditions 545
In Newark, 54 out of 1,600 arrests (of which apparently only
around 1,300 went to court) 807 cases were sent to the Grand
Jury, which returned indictments against 567 and referred 208
back for trial on misdemeanors. By December, half of the mis-
demeanor cases had been disposed of, a little more than 50
percent convicted after trial, the remainder (except for a few
acquittals) on a plea of guilty. The rate of convictions in mis-
demeanor cases was only slightly lower.
In Tampa, out of 77 arrests for disorder-related offenses,
45 were charged with felonies; trial delays were minor and
most cases were tried within three months. In New Haven,
in contrast to most cities, 75 percent of the 550 persons arrested
in the July disorders were charged with misdemeanors, usually
multiple charges. This practice led to wholesale plea bargaining,
with the prosecutor usually agreeing to drop all other charges if
the defendant would plead guilty to curfew violation, which
carried a penalty of a $25 fine. As a result, all misdemeanor
cases had been disposed of by November, but felony cases
were just beginning to be heard. The prosecutor also was agree-
ing to drop felony charges for a guilty plea to a misdemeanor ;
the typical sentence in such a case was one year, with all but
60 days suspended. 55
The experience of Detroit influenced the prosecution policy in
Chicago in April 1968 ; 56 60 percent of the civil disorder defen-
dants were charged initially with misdemeanors, but unlike
Detroit, no felony cases were voluntarily dismissed and all were
prosecuted as felonies without reduction. Of 850 felony de-
fendants, 721 were indicted, most going directly to the Grand
Jury; 71 percent were adjudged guilty, the majority on pleas of
guilty. Sentences were light only 19 percent to any time in
prison. The high incidence of pleas was in part the result of the
harsh bail policy. The original bonds remained generally in effect
until the date set for preliminary hearing, with prosecution
policy to continue again and again so that original indictments
could be sought. Defendants who could not make bond were thus
increasingly pressed to plead guilty.
As noted, in Washington in April 1968, 57 most defendants
were charged initially with felonies, with a review of charges
anticipated. For this review, the U.S. Attorney established a
set of guidelines for the four experienced assistants who, under
the supervision of senior assistants, were designated to review
all felony cases before preliminary hearing in the Court of
General Sessions. Depending on the facts of the offense and
whether or not the defendant had a prior criminal record, the
guidelines provided for no reduction, for reduction to mis-
demeanor charges only in exchange for a plea of guilty to the
546 Report of the Task Force on Law and Law Enforcement
reduced charge, or for automatic reduction to misdemeanor
charges.
A large number of felony cases were completely dropped for
lack of evidence. About two-thirds of the rest fell into guideline
categories in which a plea of guilty was demanded. Most of these
defendants (or their lawyers) refused at that stage to plead
guilty in exchange for reduction of the charge. Their cases, there-
fore, were sent to the Grand Jury for indictment and trial.
The Grand Jury returned indictments against 510 defendants,
473 for Burglary II, the standard riot charge for accused
looters. As of January 1, 1969, nearly two-thirds of these cases
were still pending. On the other hand, 90 percent of all original
misdemeanor cases had been disposed of by the end of August.
Of the felony cases acted upon, about 25 percent were dismissed
or acquitted, about 17 percent were found guilty or pleaded
guilty to a felony, and the rest either pleaded or were found
guilty of only a misdemeanor. The sentences for felony and
misdemeanor defendants ran about the same ; in both categories
about 80 percent of the defendants were sentenced to no time
in prison.
Considering that most of the indictees were ordinary looters,
that few (of those disposed of) have been convicted of felonies
in the District Court, that most have received suspended sen-
tences, that the riot cases have added considerably to the backlog
and trial delay in the District Court where serious offenses are
tried, and that these cases would doubtless have been tried more
quickly in the Court of General Sessions considering all these
factors, too many felony indictments were sought and obtained.
The main factor in this was the insistence by the U.S. Attorney's
Office on a plea of guilty before reduction to misdemeanor charges
in the Court of General Sessions. But other factors also applied :
failure to reduce charges automatically in some of the small
number of cases that fell in that category, and absence of a
sufficiently varied arsenal of statutes for charging riot related
offenses.
THE DISPOSITION OF THE PROSECUTIONS:
RECOMMENDATIONS
Several factors stand out in the prosecution of riot cases : the
seemingly high initial charge; the large percentage of dis-
missals and later reductions; the eagerness of the prosecution
to "bargain" for guilty pleas; the delay in disposition of felony
cases, and, ultimately, the light sentences. Judge Crockett of
the Detroit Recorder's Court has commented:
Black citizens of Detroit find it difficult to understand a
system of criminal justice that charges 3,230 persons with
Justice Under Emergency Conditions 547
felonies and then, after imprisonment for days and the
payment of thousands of dollars in attorney fees, disposes
of the first 1,630 of these felonies with 961 dismissals, 664
pleas to misdemeanors (trepass, petty larceny, and curfew
violations) and only two convictions after trial on the
original charge ! 58
Clearly, prosecutors should consider the effect of their policies
on the community's view of the criminal justice system. Immedi-
ately after the restoration of order, the prosecutor's office should
begin a comprehensive review of all cases based on all the
evidence and on the defendant's prior record and personal situ-
ation before conferences with defense lawyers or attempts
at plea bargaining. This review should try to reduce all felony
charges except those against defendants whom the evidence
reveals as actual breakers, inciters, instigators, or those with
fresh records of serious crime. These latter cases should be
vigorously prosecuted, and no plea bargain offered or accepted,
in order to make an example of them.
The run of the mill, however, should be reduced to appropriate
misdemeanor charges, and only then should an effort be made
to obtain guilty pleas. The price of such a policy would un-
doubtedly be more misdemeanor trials, but the counterbalance
would be fewer felony trials.
CONCLUSION
Criminal justice machinery in our cities during and in the
wake of civil disorders and other emergency situations has
failed to successfully deal with the physical and mechanical prob-
lems of handling the increased flow of arrestees and defendants.
The standards of justice in the initial stages of criminal prose-
cutions, low in normal times, went still lower in emergencies,
especially in the critical matters of bail and provision of counsel.
Only rarely, and then only in more recent instances of dis-
order, have police departments, courts and prosecutor's offices
attempted to learn from the mistakes of their counterparts in
other cities or even from their own earlier experiences. Only
in a few instances have they made efforts to think out and
plan in advance for future emergencies; and those few efforts
were inadequate.
When the emergency has struck, it is too late to plan. The
kinds of problems encountered are familiar and common to
emergencies everywhere. The tensions that cause civil disorders
and other disturbances still remain. Other long, and possibly
hot, summers may come again. The police, the courts, prosecutors
offices, defense bar, and others in the criminal justice process
548 Report of the Task Force on Law and Law Enforcement
must meet to consider the problems in future emergencies and
to plan how to meet them, now.
REFERENCES
1. National Advisory Commission on Civil Disorders, Report (Washing-
ton, B.C.: Government Printing Office, 1968), ch. 13.
2. Governor's Select Committee on Civil Disorders, State of New Jersey,
Report for Action (1968).
3. Baltimore Committee on the Administration of Justice Under Emer-
gency Conditions, Report (1968).
4. Locke, "Riot Response: The Police and the Courts," 45 J. Urban L.
805 (1968).
5. U. Chi. L. Rev., "Note on the Administration of Justice during the
Civil Disorders of April, 1968." A preliminary, pre-publication draft of
the Note was made available to the Task Force and is the source of
this information.
6. D.C. Committee on the Administration of Justice Under Emergency
Conditions, Interim Report (1968).
7. William L. Cahalan, The Detroit Riot (mimeograph, undated).
8. U. Chi. L. Rev., supra note 5.
9. D.C. Committee, supra note 6.
10. Id.
11. U. Chi. L. Rev., supra note 5.
12. Baltimore Committee, supra note 3.
13. D.C. Committee, supra note 6.
14. U. Chi. L. Rev., supra note 5.
15. D.C. Committee on the Administration of Justice Under Emergency
Conditions, Second Supplemental Report; Operation of the District of
Columbia Criminal Justice System Following the Mass Arrests on
June 24-25, 1968.
16. April 27 Investigating Commission, Dissent and Disorder; A Report to
the Citizens of Chicago on the April 27 Peace Parade (1968).
17. Raymond F. Simon, Corporation Counsel, City of Chicago, The Strategy
of Confrontation; Chicago and the Democratic National Convention
1968 (Chicago: Gunthorp Warren Printing Co., 1968) at 41.
18. American Civil Liberties Union, Day of Protest, Night of Violence;
the Century City Peace March (1967).
19. Evelle J. Younger, Civil Disturbance Manual for Law Enforcement
(1967) ; Arlen Spector, Rights and Limitations on Speech and Assembly
(undated).
20. Comment, "The Administration of Justice in the Wake of the Detroit
Civil Disorder of July 1967," 66 Mich. L. Rev. 1954 (1968).
21. Report for Action, supra note 2.
22. U. Chi. L. Rev., supra note 5; Chicago Riot Study Committee, Report to
the Mayor (1968).
23. William A. Dobrovir, Justice in Time of Crisis; The Administration of
Justice in the District of Columbia During the Civil Disorders of April
1968 and in the Riot-Related Prosecutions (1969).
24. Baltimore Committee, supra note 3.
25. Id.
26. D.C. Committee, Second Supplemental Report, supra note 15.
27. April 27 Investigating Commission, supra note 16.
28. National Commission on the Cases and Prevention of Violence, Report
by Daniel Walker, Rights in Conflict (New York: Bantam Books, 1968).
Justice Under Emergency Conditions 549
29. See Norman Mailer's Armies of the Night (1968).
30. Crockett, "Recorder's Court and the 1967 Civil Disturbance," 45 /.
Urban L. 841 (1968).
31. U. Chi. L. Rev., supra note 5.
32. Dobrovir, supra note 23.
33. Comment, supra note 20.
34. National Advisory Commission on Civil Disorders, ch. 13, supra note 1.
35. Crockett, supra note 30.
36. Cahalan, supra note 7.
37. Colista and Domonkos, "Bail and Civil Disorder," 45 J. Urban L. 815
(1968).
38. Evelle J. Younger, Report to the Governor's Commission on the Los
Angeles Riots (1965).
39. Background report for the Kerner Commission; in the National Ar-
chives of the United States.
40. Id.; see also Bean, "Plainfield: A Study in Law and Violence," 6 Am.
Crim. L.Q. 154 (1968).
41. Comment, supra note 20.
42. Baltimore Committee, supra note 3.
43. Id.
44. U. Chi. L. Rev., supra note 5.
45. Id.
46. Chicago Riot Study Committee, supra note 22.
47. U. Chi. L. Rev., supra note 5.
48. Platt, The Administration of Justice in Crisis: Chicago, April 1968
(1968).
49. Illinois Special Legal Project (the Roger Baldwin Foundation of the
American Civil Liberties Union), Preliminary Report and Evaluation
on the Bail Procedures in Chicago's Looting Cases Winter 1967 (1967).
50. Dobrovir, supra note 23.
51. We may eliminate altogether here the political demonstration; as we
have seen, the nature of the usual charges in such situations leads
ordinarily to prompt disposition and minimal sentences. The mass civil
disorder, on the other hand, leaves major problems in its wake.
52. U.S., Congress, Senate, Committee on Government Operations, Riots,
Civil and Criminal Disorders, Hearings, before the Permanent Sub-
committee on Investigations, on S. Res. 216, 90th Cong., 2d sess., 1968,
pts. V and VII.
53. Comment, supra note 20.
54. Report for Action, supra note 2.
55. Bean, supra note 40.
56. U. Chi. L. Rev., supra note 5.
57. Dobrovir, supra note 23.
58. Crockett, supra note 30.
CHAPTER 23
THE PROBLEM OF
'0 VERCRIMIN ALIZ ATION" *
[W]e stand at the moment in a fundamentally para-
doxical condition: The United States in 1969 is prob-
ably a more permissive society than at any other time
in its history ; the United States in 1969 also possesses a
larger arsenal of criminal laws and more elaborate
law-enforcement machinery than at any other time in
its history. 1
Increasingly in recent years legal scholars have drawn atten-
tion to our society's failure to discriminate between appropriate
and inappropriate uses of the criminal sanction. According to
Herbert L. Packer, one of America's leading students of the
criminal law, this failure mars even the monumental work of
the President's Commission on Law Enforcement and
Administration of Justice: the report of that Commission did
not recognize that one major source of crime in the United
States is "overcriminalization." 2
Overcriminalization the misuse of the criminal sanction can
contribute to disrespect for law, and can damage the ends which
law is supposed to serve, by criminalizing conduct regarded as
legitimate by substantial segments of the society, by initiating
patterns of discriminatory enforcemert, and by draining
resources away from the effort to control more serious mis-
conduct. Examples of statutes which raise problems of "over-
criminalization" are those laws dealing with morals, like sexual
conduct and gambling; with illness, like drunkenness and nar-
cotics possession by addicts; and with nuisance, like disorderly
conduct, objectional language, and vagrancy. 3
The common characteristic of these kinds of conduct is that
either there is no "victim" in the usual sense of the word,
* This chapter is based on a paper by William Dobrovir of the District
of Columbia Bar.
551
552 Report of the Task Force on Law and Law Enforcement
because the participants in the offense are willing; or the
defendant himself is the "victim"; or the interest of the victim
is often so insubstantial that it does not justify imposition of
the criminal sanction to protect it. Therefore, one of the essential
reasons for imposing criminal penalties to deter conduct that
is clearly and significantly harmful to the persons or property
of others is lacking.
THREE CATEGORIES OF "OVERCRIMINALIZATION" 4
Morals statutes are of several types. In most U.S. jurisdic-
tions, any sexual activity except "normal" sexual intercourse
between married partners is a crime. Probably no laws are
broken more often. Indeed, if all violators were prosecuted and
punished, a majority of the adult population of the United
States would be in prison. Such statutes thus become organized
hypocrisy on a national scale. They punish "fornication" between
consenting unmarried adults, homosexuality, adultery, and all
kinds of "abnormal" sexual conduct even between married
persons.
Such laws satisfy public conscience by announcement of
strict judgments and public condemnation of "immoral" and
"irreligious" behavior, which we, as human beings subject to
temptation, regrettably deviate from in private. As Thurman
Arnold has written in much-quoted passage:
Most unenforced criminal laws survive in order to satisfy
moral objections to established modes of conduct. They are
unenforced because we want to continue our conduct, and
unrepealed because we want to preserve our morals. 5
Increasingly, however, morals have changed for more and more
people, especially for younger people, and the standards embodied
in these laws are publicly dissented from by an ever larger
segment of society. The general failure to enforce these laws
is probably the only factor preventing an immediate vocal
demand for their repeal.
Akin to the sexual conduct statutes, but with a higher degree
of justification, are the morals laws punishing the sale and
purchase of prostitutes' services, large-scale gambling, and abor-
tion. These acts have a commercial character and hence a higher
degree of repugnance to majority values. Pandering for profit
to man's weaknesses seems more abhorrent than mere yielding
to temptation. It is also true that these offenses carry other
harms in their wake. Thus prostitution, as conducted by street-
walkers and their panderers, often result in making the pro-
spective customer the victim of the 'Murphy game" and other
fraudulent practices. Prostitution also can spread venereal dis-
The Problem of "Overcriminalization" 553
ease and give offense to respectable persons in neighborhoods
frequented by streetwalkers openly purveying their services.
Illness statutes, such as the laws punishing intoxication and
and possession (as distinguished from sale) of addictive drugs,
comprise a second category. The interest of society in prevent-
ing these evils and in protecting the offender from himself is
much stronger than in the case of the morals statutes. Arrest
of alcoholics gets them off the streets where they may come to
harm while helplessly intoxicated; in winter it is a charity to
provide the often homeless drunk with warmth, shelter, and a
meal in jail. Arrest stops the alcoholic from presenting a public
spectacle offensive to the sober, particularly when the alcoholic
engages in aggressive efforts to obtain handouts from unescorted
women and other passers-by. A short jail term keeps him away
from the bottle for that period of time and offers, some believe,
at least a faint hope of reform.
The narcotics addict is a more serious problem, for his per-
sonal destruction is more complete.The correctional system in
which he is placed by arrest, prosecution and punishment, rec-
ognizes an obligation (albeit ill-fulfilled) to provide rehabilita-
tion. Moreover, the addict, in order to support his habit, often is
driven to commit property-related crimes, and his isolation by
punishment protects society against them.
Punishment of the possession and sale of non-addictive drugs
like marihuana falls somewhere between the morals laws and the
illness laws like those dealing with alcoholics and addicts. The
use of marihuana is especially popular among the young, although
many fear that they may be at least psychologically harmed by
frequent use. Moreover, marihuana has become something of a
symbol of rebellion against the established order and its two-
martini business lunches, and the established order thus finds it
particularly difficult to take the step of bringing marihuana-
smoking within the pale of legality.
The nuisance statutes are the late category of statutes gen-
erally considered under the heading of "overcriminalization."
These typically penalize disorderly conduct and vagrancy.
Disorderly conduct statutes deal with such matters as
"affrays"; with gatherings in public that are "loud and bois-
terous" ; with swearing or profanity in public; with ball games in
the street; with indecent proposals; with flying kites; with gen-
erally causing a disturbance; and with failure to move on when
ordered by a police officer. 6 Related to these areas, but also closely
related to the morals laws, are laws punishing the sale or posses-
sion of pornographic literature, films, and the like. 7 "Vagrancy"
includes the offenses of "leading an immoral or profligate life"
without a "lawful means of support"; of frequenting "houses of
ill fame" or of "loitering" in gambling establishments, in un-
554 Report of the Task Force on Law and Law Enforcement
licensed saloons or in places where narcotics are found; and of
begging, and "common law vagrancy." 8
Such laws can serve a clear community interest. They can pro-
tect community tranquility and prevent annoyance of the more
quiet citizens by the pugnacious, the shiftless, the noisy, and the
foul-mouthed. The police use such statutes as weapons against
prostitutes, gamblers, and others whose apprehension is difficult
because of problems of proof, and as legal underpinning for their
general peacekeeping and order-maintaining responsibilities.
THE COSTS OF OVERCRIMINALIZATION
Most of the conduct prohibited by the morals, illness and nuis-
ance statutes cited above, is, in some degree, blameworthy or
otherwise undesirable. But this observation provides only the
beginning of an answer to the question we are concerned with,
namely, whether such conduct ought to be prohibited by criminal
statute. A single-factor analysis is inadequate. The criminal sanc-
tion finds its optimal use only where a number of different kinds
of conditions are satisfied. In Packer's calculus, for example, the
conditions for optimal use of the criminal sanction include the
following :
(1) The conduct in question is prominent in most people's
view of socially threatening behavior, and is not condoned by
any significant segment of society.
(2) Subjecting it to the criminal sanction is not inconsistent
with the goals of punishment.
(3) Suppressing it will not inhibit socially desirable conduct.
(4) The conduct may be dealt with through evenhanded and
non-discriminatory enforcement.
(5) Controlling it through the criminal process will not ex-
pose that process to severe qualitative or quantitative strains.
(6) There are no reasonable alternatives to the criminal
sanction for dealing with it. 9
Application of these criteria to the morals and nuisance
statutes raises a number of additional questions concerning the
propriety of these laws. Thus laws like those against consensual
fornication that are rarely if ever enforced are seen to be pro-
hibitions that are not seriously intended to be generally and
even handedly enforced. In those rare instances where enforce-
ment is sought, the penalties become a discriminatory club
against the unwary.
Those morals laws that are more frequently enforced, like
those against homosexuality, have even worse consequences. To
make the typical morals squad arrest, a police officer in plain
clothes will, in order to elicit in advance, loiter in places like
The Problem of "Overcriminalization" 555
public lavatories that homosexuals are thought to frequent. Such
conduct must have a degrading effect on the police officer. Also
he has difficulty in making a "good pinch" 10 in such cases and in
enforcing the laws against prostitution : if the officer makes the
advance, it is "entrapment," which renders a conviction invalid.
Enforcement of laws against crimes without victims also re-
quires the use of a network of informers, who in turn must be
compensated; since they themselves are often criminals, the com-
pensation is usually leniency of treatment. 11 Sometimes vice,
morals or gambling squads impose arrest "quotas" on officers;
often the difficulty in making these cases stick, encourages
officers to embellish, if not fabricate, incriminating facts. 12
Perhaps, also, the evils of prostitution, gambling, and narcotics
result more from their illegality than from their inherent harm-
fulness. Illegality often results in risk for both the seller and the
buyer, as in the "Murphy game," in which he who fears exposure
becomes the prey, and he who engages in robbery or auto
burglary becomes the hunter. And, tragically, it can result in
deaths as from illegal abortions clumsily performed in unclean
conditions. The transmission of venereal disease by prostitutes
who, if not criminals, would normally (or if licensed could be
required to ) protect their and their customers' health by periodic
medical examinations, is another example. Cheating in illegal
gambling, with no lawful redress for the cheated, is a third. The
high cost of narcotics because of illegality means that addicts
need from $20 to $100 per day to support their habit. The only
sources of such funds become other crimes not only prostitution,
but violent crimes like burglary, robbery, auto theft, and purse
snatching. 13
The industries of prostitution, gambling, and narcotics require
(prostitution to a smaller degree) an organization. The numbers
writer and runner is financed by an operator with greater re-
sources who, in turn, must have sources of funds to pay off bets.
Narcotics require an immense distribution network. Prostitutes
need agents to solicit the diffident and places in which to render
their services. Since involvement in any of these activities is un-
lawful, they are performed and supervised by what is by defini-
tion organized crime.
Organized crime as we know it had its birth during prohibi-
tion, providing precisely the same kinds of illegal services
through a complex industry. Primarily because of the illegality
of providing these goods and services, the profits are enormous.
To protect these profits, organized crime does not shrink from
bribery of public officials and police officers, from coercion, and
even from murder. 14
The moral question cuts more than one way. The need to use
the law to enforce a moral code held (even if it were observed in
556 Report of the Task Force on Law and Law Enforcement
practice) by considerably less than the entire population raises
a question of the strength of the moral imperative behind that
code. Punishment of the drunk and the narcotics addict for con-
duct recognized to be a disease, erodes the very foundation of the
criminal law, which holds that conduct must be blameworthy in
order to deserve punishment. 15 The law degrades its nobility and
weakens its moral authority when it punishes as a crime that
which is really only an illness.
The laws against disorderly conduct and vagrancy spring from
a different set of middle class standards: the quiet, tree-lined
street of 'Our Town" on a sunny Sunday afternoon in spring.
They are enforced, however, in the teeming urban ghetto where
life styles by choice and by necessity are different. In the heat
of summer, people who live in stifling tenements will gather in
the public street, to laugh and sing, to talk loud and use pro-
fanity. Youngsters with no parks or playgrounds nearby will
play ball in the streets. And city living is by nature public and
gregarious; indeed, this is its joy.
Police officers, however, live by the middle class standards that
disorderly conduct laws articulate. Enforcement of the suburban
or small town life style by arrests for this kind of conduct or by
the catchall "move on" order may seriously exacerbate police-
community tensions. 16 A "move on" order or arrest for, say,
noisiness, can provoke objection from the citizen who feels he
is doing nothing wrong, and it can lead to "fighting words" and
the escalation of conflict. 17
The resources devoted to enforcement of laws against im-
morality, intoxication, narcotics possession and disorderly con-
duct cannot easily be measured. Arrests for drunkeness, for
instance, make up a large percentage of all arrests, 18 but they do
not absorb a great deal of patrol time; yet using precincts and
jails to house drunks does make space unavailable for other
purposes. Time devoted to harassing patrols of prostitution and
to undercover work against homosexuals, narcotics addicts and
gambling, probably takes a lot of patrol and detective time.
Moreover, when arrests are made, the time of officers in court,
and of judges and court personnel and prosecutors, will be taken
from other, perhaps more important, matters; then conviction
means taking the time of probation personnel and of the already
grossly inadequate resources of the correctional system. The
result may be assembly-line justice or worse for all concerned.
The anomalies and difficulties arising from criminalization of
these kinds of conduct implicitly suggest their own solutions,
but how can such solutions be implemented, and how can the
problems that would arise from "decriminalization" be handled?
What are the consequances of legislative repeal of these statutes
identified as overcriminalizaed and what are the alternatives?
The Problem of "Overcriminalization" 557
THE CONSEQUENCES OF REPEAL:
THE MORALS STATUTES
Those statutes that penalize various kinds of sexual activity
between consenting adults in private beg for repeal. But repeal
of such laws does not simply end the matter. If consenting
adults, why not consenting minors above a certain age? What
age? At what point does the parental interest in protecting chil-
dren against what the parents deem to be wrong or harmful to
children justify intervention of the criminal law? What does
"consent" mean? What is "private"?
Packer 19 has illuminated the difficulties of drawing lines. As
for age, he suggests possibly limiting the criminal sanction to
situations where the disparity is great, creating a presumption
of something like undue influence; and he would include any
kind of coercion or taking undue advantage of intoxication, of
mental incapacity, and the like. As for privacy, he would recog-
nize the public affront of overt solicitation, where the solicita-
tion "created a substantial risk that someone might be
offended." 20
Homosexual conduct raises a similar issue, involving pri-
marily a difference in the degree of moral disapproval by the
majority middle class. This seems outweighed, however, by the
greater evils resulting from criminal penalties, particularly
blackmail. In England, the Wolfenden Report 21 has recom-
mended the abolition of criminal sanctions, despite the prevalent
atmosphere of moral opprobrium.
Abortion could be treated simply as a medical matter between
patient and doctor instead of as a criminal offense, and in this
way the evils of abortion "rings" and the dangers of unsterile
abortions would be eliminated. To be sure, the concern of some
religions for the unborn child is deeply offended by abortion.
But if the only support of abortion laws is a particular religious
doctrine, then the policy of the First Amendment's Establish-
ment Clause would argue strongly against the decisiveness of
such support.
Suggestions for repeal of laws against prostitution ordinarily
join with proposals for control, regulation or licensing, citing
the practice in various European countries. These proposals seek
to avoid the undesirable consequences expected to result from
mere repeal: increase in prostitution, its spread to other more
respectable neighborhoods, the spread of venereal disease, and
the increase in the satellite crimes of fraud and theft. Packer's
suggestion that prostitution be treated as a public nuisance and
punished only if someone is "offended," 22 fails to meet these
issues.
Control or regulation, such as confinement to a "red light"
558 Report of the Task Force on Law and Law Enforcement
district and to supervised houses, would avoid the spread of
itinerant streetwalkers and would allow easier control of disease
and other crimes. But this move is perhaps more difficult than
outright repeal, for it would involve the state directly and in-
vite the charge that the government thereby encourages "vice."
Such controls, moreover, would not reach "middle-class" prosti-
tution, such as the call girls typically provided for convention-
eers. Yet this branch of the trade, carried on discreetly and in
private, has few or none of the attendant problems of street
prostitution, and therefore may require no need for regulation
beyond periodic medical examination.
Use of the criminal law against prostitution has failed to
eradicate or, to any appreciable extent, to reduce it. Is prostitu-
tion ineradicable by any means? While history would seem to
bear this out, it is not a necessary assumption. Many women
become attracted to prostitution by their inability to survive
in other occupations, by their need to support a narcotics habit,
or by the dominant puritan culture which creates a market for
such services. These are social conditions for which social solu-
tions ought to be possible. 23 In Scandinavia, for example, where
the sexual climate is more permissive and the welfare state has
eradicated poverty, prostitution is virtually nonexistent. Per-
haps that is the direction in which the widely heralded "sexual
revolution" in the United States is also taking us.
Gambling as a business is only partly criminal. Betting on
horses at a licensed race track is lawful; but betting on horses
at home, on the treasury balance, or on dice or cards in an
organized game, is a crime. Once we admit that gambling is
tolerable at all, that it is a service industry that caters to a
human want inherently no more vicious than the desire for, say,
alcohol, no reason prevails against legitimizing gambling as an
industry under licensing and regulation similar to that imposed
on the distilling industry, the food and drug industry, or even
the stock market "the greatest gambling enterprise in the
United States." 24 It would doubtless attract investors who would
compete effectively with organized crime. 25 And if "organized
crime" continued to control gambling as an industry, legalization
would mean that such organized crime would cease to be a
crime. Obviously, much "crime" is, after all, what we define it
to be. 26
THE CONSEQUENCES OF REPEAL:
THE ILLNESS STATUTES
Laws against intoxication are currently under attack in the
courts, and two decisions of federal Courts of Appeals, in the
Fourth Circuit and in the District of Columbia, have held un-
The Problem of "Overcriminalization" 559
constitutional those statutes which punish chronic alcoholics as
criminals. 27 In these test cases, the courts held that criminal
punishment of a sufferer from chronic alcoholism, an illness
that makes intoxication involuntary, violated the common law
principle that conduct cannot be considered criminal unless it
is voluntary, 28 and hence violated the prohibition of the Eighth
Amendment against cruel and unusual punishment. 29
Since these 1966 decisions, the District of Columbia has had
to deal with chronic alcoholics, intoxicated in public, without the
benefit of the criminal law. The immediate practical result has
been to leave large numbers of drunks staggering about in the
streets of the Nation's Capital. While it was argued that police
officers might continue lawfully to arrest unknown public
drunks, since the police had no way of knowing whether any
drunk was or was not a chronic alcoholic immune from prose-
cution, the risk inherent in a possible false arrest meant that
the police would pass by the unconscious drunk. 30 This indiffer-
ence meant that the drunk continued to offend the sober and was
no longer the beneficiary of even the rough social services
formerly provided by the jail. But again it was argued:
the police have both a right and a duty to take unwilling
intoxicated citizens, who appear to be incapacitated or un-
able to take care of themselves, whether or not they are
alcoholics, to appropriate public health facilities. 31
Yet the police, in the District of Columbia at least, did not want
to assume this task.
In 1968, Congress passed the District of Columbia Alcoholics
Rehabilitation Act. 32 The new act repealed both criminal penal-
ties (except for an inebriate who endangers his own safety or
that of others) and involuntary civil commitment of chronic
alcoholics (except for those in danger of physical harm) and
provided for treatment facilities. Pursuant to the statute, three
kinds of facilities have been established: a detoxification center
in the city where persons who either come in or are brought in
by others may "dry out"; a 425-bed voluntary inpatient treat-
ment facility, filled with volunteers and with a 300-person wait-
ing list; and a half-way house for voluntary outpatient treat-
ment and support with only 10 beds. The facilities, although
obviously inadequate, at least represent a start.
An inebriate may be taken involuntarily to a detoxification
center. Further treatment is basically on a voluntary basis, but
further involuntary commitment is provided for chronic alco-
holics determined to be in danger of substantial physical harm.
The police have been delinquent in transporting inebriates to the
detoxification center, although the Act states that "any person
who is intoxicated in public/' who is not taken to his home or
560 Report of the Task Force on Law and Law Enforcement
to a public or private health facility, "shall be taken to a de-
toxification center." 33 Considerable hope now exists, however,
that as treatment facilities increase and the police department
accepts its duty to administer the Act, the problem of chronic
alcoholism in the District of Columbia will be well on the way
to solution. The strategy has been changed through a rather
trying chain of events from one of attempted but ineffective
deterrence by punishment to one of prevention and cure.
The similar problem of narcotics addiction to "hard" drugs
like heroin seems an appropriate subject for similar treatment,
despite or indeed because of the substantially greater evils of
illicit trafficking, "pushing," and satellite violent crimes against
property that follow. The principle behind Piaster and Driver
that the disease of chronic alcoholism makes intoxication in-
voluntary and hence not punishable applies as well to the prob-
lem of narcotics addiction. 34 The high incidence of crimes com-
mitted by addicts argues for additional safeguards, but here
again the social strategy should center primarily on the most
effective means of eradicating narcotics addiction a task that
the criminal law has manifestly failed to perform.
Establishment of treatment facilities is the necessary first
step. Hopefully, as with alcoholics, there will be many volun-
teers. Involuntary commitment for treatment seems justified,
however, for addicts who have a record of prior crimes or are
arrested as pushers. Such facts, when added to proof of nar-
cotics addiction, seem quite sufficient evidence that the addict
is dangerous to society in order to justify involuntary commit-
ment for treatment.
Mere possession of narcotics or narcotics paraphernalia should
no longer be a crime, although the drugs would be subject to
confiscation. As with alcoholics, addicts currently on the drug
could be taken into custody for withdrawal from dependency,
after which they would be encouraged to undertake further
treatment. In all cases, the person treated should have the right
to be transferred to outpatient care as soon as he is no longer
a danger to himself or to society. And for former narcotics
addicts (as for former alcoholics) support and supervision
should continue, for treatment does not cure the personality
weakness or the results of poor education, nor the broken fam-
ilies or the other social ills that make the addict prone to his
habit.
As such a program begins to shrink the market for narcotics,
the profitability of the traffic, which attracts organized crime,
should also shrink. So also should satellite crimes, including
prostitution. But a further direct attack on the price of "hard"
drugs, to discourage both organized crime and satellite crimes,
seems in order. The obvious and most sensible course would per-
The Problem of "Overcriminalization" 561
mit physicians to prescribe drugs more freely to addicts, coupled
with an obligation to encourage the addict to accept treatment.
The question of marihuana, LSD, and other non-addictive
drugs with more or less profound psychological and physiolog-
ical effects, has different elements and calls for a different solu-
tion. Since there is no evidence of addiction, treatment is unnec-
essary. Until and unless evidence is forthcoming of harmful or
addictive effect of marihuana and to date the evidence is all to
the contrary 35 no rational basis exists upon which to resist
arguments in favor of modifying the Draconian statutes penaliz-
ing possession of marihuana. 36 As long as tobacco and alcohol
are lawfully sold "poisons," there is scant justification for abso-
lutely prohibiting the sale and use of marihuana. Moreover, the
effect of this heavy-handed prohibition in eroding respect for
law among the young people in today's world may be widely
underestimated.
There is real evidence, however, that certain of the "mind-
expanding" drugs such as LSD do have harmful psychological,
physical, and genetic effects. As for such drugs, to impose crimi-
nal punishment on the user who harms only himself (or herself
and her unborn children) seems hard to justify. Public education
ought to be the primary strategy, supplemented by strict control
of the sale of such drugs, with rigorous criminal penalties for
black market sale.
THE CONSEQUENCE OF REPEAL:
THE NUISANCE STATUTES
The last group of statutes are those used to punish conduct
deemed to be a nuisance to particular segments of society or to
the police themselves written and oral obscenity, disorderly
conduct, and vagrancy. The chief questions raised by these laws
are whether and when the interest of the public or rather of a
segment of the public in not being offended is strong enough
to justify use of the sanction of the criminal law; and whether
and when that interest is strong enough to override other con-
stitutionally protected rights of those whose conduct may offend.
In most states, statutes punish the sale, dissemination and pos-
session of obscene books, films, or other such matter. These laws
place an obvious restraint on freedom of expression, and the
courts continually have had to wrestle with the problem of
whether some speech or writing is so obscene that it does not
deserve the protection of the First Amendment. The basic rule
seems to be that the sale or distribution of obscene literature is
punishable if the literature appears to the courts to be "utterly
without redeeming social importance." 3T
The Supreme Court has only recently held a statute penalizing
562 Report of the Task Force on Law and Law Enforcement
the mere possession of pornographic material as unconstitutional
interference with the right to privacy and First Amendment
freedoms. 38 The decision rests not only on the "right to receive
information and ideas, regardless of their social worth" a seem-
ing retreat, at least with respect to possession of pornography,
from the test of "redeeming social importance" but also on a
"right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy." 39
There is something anomalous, however, in permitting private
possession and enjoyment of pornography while prohibiting its
sale. No one is required to buy "obscene" books or view "obscene"
films. The "sensibilities" of the general public do not, it seems,
outweigh society's interest in freedom of expression, at least
where the manner of promotion and sale of the obscene material
does not invade the privacy of individuals who wish not to be
confronted by such materials (as would clearly be the case, for
example, of unsolicited mailings of flyers to the home, door-to-
door sales, billboards, and the like).
The laws against disorderly conduct and vagrancy are de-
fended, particularly by the police, as a necessary peacekeeping
tool. Not only are many arrests made, 40 but the threat of arrest
and the availability of the "move on" order permit the officer
to maintain tranquility and order on his "beat." The question
of these laws raises is important, particularly in the racial ghet-
toes of our large cities. In the more tranquil suburbs the com-
munity probably strongly supports both the discretion and nor-
mal manner of its exercise. 41
Police discretion rarely has been recognized officially. In most
states, statutes require the police officer to arrest "all" violators,
"all felons," or "all persons committing an offense in his pres-
ence," or impose a duty to enforce "all" the criminal laws. 42
Legislatures do not appear to have given the matter much
thought, since the operative assumption has always been that
this kind of power may not be delegated in the criminal law. 43
Police discretion not to arrest, to fail to enforce the law, is
perhaps most obvious in laws against consensual sexual acts and
against gambling. 44 But more important in the context of en-
forcement of "nuisance" laws is selective, discretionary enforce-
ment. For instance, when in the course of exercising his peace-
keeping function, an officer meets with disrespect or backtalk,
especially profanity, he will often make arrests in order to main-
tain respect and to uphold his authority. 45
Police exercise of discretion and selective enforcement have
been defended as necessary to fair and effective law enforcement.
Probably, whatever its justification, it is unavoidable. The test
ought to be whether in fact the exercise of discretion results in
fair enforcement, and this in turn depends on the factors govern-
The Problem of "Overcriminalization" 563
ing the officer's decision. Thus discretion exercised on a basis of
race or color is clearly unlawful, 46 and the citizen's attitude and
his status in the community are other improper criteria. 47
In the numerous civil rights and antiwar demonstrations of
the last few years, the police have had to tread the very thin line
between protecting First Amendment rights of effective free
speech and assembly and the countervailing rights of the public
to unhampered access to buildings and public thoroughfares. In
many of these situations, the police have stated their policy to
be the full enforcement and protection of free movement. 48 This
policy of confrontation, often resulting in escalation of mutual
distrust and even violence, has put the police in the position of
contributing to further, more violent disorder. The need for
discretion and restraint particularly applies when the demon-
strator feels wronged by a "get tough" policy. 49 Some police de-
partments have adopted openly declared policies of restraint and
non-enforcement unless and until a public danger is created. 50
Other departments have responded by not allowing demonstra-
tions at all. 51
Police failure to recognize the availability of discretionary
enforcement has had disastrous consequences:
Police insistence that their responsibility is to fully en-
force the law is to perpetuate a myth which is impossible
of achievement and would be undesirable if it could be
achieved. At times this may be an understandable public
relations position but has seriously adverse consequences for
police if they fail to recognize that theirs is a responsibility
for the development of an adequate and fair law enforce-
ment program within legal limits. 52
This view had led to suggestions for the adoption of formal guide-
lines to control police discretion, 53 guidelines which
. . . would bring the important street decisions, now made
only by patrolmen, up to the level of the chief administrator
and his staff, who would formulate policy much in the way
a board of directors serves a corporation. This would re-
move from individual policemen some of the burden of hav-
ing to make important decisions ad hoc, in a matter of
seconds. It would create a body of standards that would help
make the supervision and evaluation of the work of indi-
vidual policemen consistent. 54
With respect to enforcement of the laws against disorderly
conduct and vagrancy, however, few believe that guidelines will
solve the underlying problems of enforcement, although they
may well ameliorate them. These statutes, as we have indicated,
tend in the ghetto situation to impose on the community values
564 Report of the Task Force on Law and Law Enforcement
that have little relevance to people against whom they are en-
forced, for their enforcement rests in police officers whose back-
grounds favor the values in the statutes.
The inadequacy of guidelines is illustrated by two recent
efforts to draft guidelines in this area for the District of Colum-
bia and Philadelphia Police Departments. 55 The District of
Columbia guidelines, for example, recognize that "enforcement
of these disorderly conduct statutes is one of the most difficult
and sensitive problem areas currently confronting police officers"
and urge that "on those occasions where public order can be
maintained without an arrest, it is incumbent upon the police
officer to make every reasonable effort to do so." They point out
that in a city "it must be expected that there will be more noise
and other disturbances than in less populated areas." They warn
against "indiscriminate" mass arrests.
Turning to specific provisions of the law, the guidelines
necessarily, given the language of the statutes undercut these
general admonitions to exercise discretion wisely. Thus they
instruct the officer to intervene when "loud and boisterous con-
duct is definitely disturbing or potentially disruptive, to the com-
munity." With respect to profanity, the guidelines first state
flatly:
An individual who curses, swears, uses profane language,
indecent or obscene words, or who engages in any similar
disorderly conduct in a public place commits an offense.
(D.C. Code 22-1107.) It is also an offense to engage in such
activity in a private place when the conduct may be heard
in a public place or in another private place.
The guidelines then attempt to strike a middle ground, but again,
as the statute requires, they instruct officers to make arrests:
Some people use obscene and vulgar words as a major
part of their normal conversation, and through habit and
vocabulary limitation, customarily express themselves in
this manner, particularly when excited or under stress.
These people will often refrain from repeating such lan-
guage when told to stop by a police officer.
There is no distinction between abusive language directed
to a civilian or a police officer. Although a police officer
should demonstrate greater self-control than the ordinary
citizen, the police officer is not expected to refrain from
arrest when abusive language is directed toivard him.
[Emphasis added.]
The Philadelphia guidelines struggle with similar difficulties.
The officer is instructed that if loud and boisterous conduct "is
disturbing enough to annoy residents or passersby, it is an
The Problem of "Overcriminalization" 565
offense even if the policeman is the only one who happens to be
observing it. [Emphasis added.] And "dirty language" becomes
an offense if it "adds up to a general nuisance."
The Philadelphia guidelines (unlike the District of Columbia
guidelines) also deal with vagrancy, and candidly inform the
officer that the laws against Vagrancy" and "loitering" are "a
very confusing set of laws" and that "to some extent these laws
may be obsolete or unconstitutional." They then cautiously sug-
gest limiting use of these statutes "against persons preparing to
commit burglary, peeping, eavesdropping or some other specific
misbehavior." The decision whether a loiterer is "preparing" to
commit such an offense is up to the officer.
The problem with guidelines like these is that they are little
help to the officer who does not have a feel for the values of the
community he is policing. They do not solve the fundamental
problem of vague statutes being enforced by persons whose
mores are often inconsistent with the general mores and life
style of the inner city. Thus, in a prosecution tried before the
Chief Judge of the Court of General Sessions of the District of
Columbia in April 1969, the defendent was convicted of dis-
orderly conduct for demanding of a police officer, who refused
to proceed to the scene of an accident in the heart of the ghetto,
that the officer should "get out there and do your m
f - job." In response to the defense that such language
is common usage in the neighborhood, the court insisted on
applying "the same standard of conduct to all parts of the city." 56
An important value that the laws against profanity ignore,
if literally applied, is the usefulness of profane words as a safety
valve and as an alternative to violence. As Ashley Montagu, a
famous anthropoligist, has observed :
It is clear then, that in common with weeping and laugh-
ter, swearing serves a very useful function as a cathartic,
that is as an outlet for emotions which results, as it were,
in a purifying effect, as well as a pacifying one. 57
And to quote an oft-cited aphorism:
It has been said that he who was the first to abuse his
fellow-man instead of knocking out his brains without a
word laid thereby the basis of civilization. 58
The courts recognize this in the law of torts where only civil
penalties are involved but not in the criminal law. 59 The va-
grancy statutes that punish "loitering," "failing to give a good
account" of one's self, leading an "immoral or profligate life,"
lacking a "lawful and visible means of support," or wandering
about at "late and unusual hours" form a significant basis for
police discretion. Such laws have been used to arrest prostitutes
566 Report of the Task Force on Law and Law Enforcement
in order to control or reduce prostitution, in lieu of attempting
prosecution for the substantive offense which requires proof of
an actual solicitation. They are also used to harass "beatniks,"
"hippies," rowdy teenagers, and others whose life style is abhor-
rent to the middle-class ethic of the police officer and who to
him are "undesirables" as they often are to many segments of
the community. But where conduct like prostitution is preva-
lent and difficult to prove, use of vague vagrancy provisions that
result in no more than harassing fines or very short jail terms
can only degrade the law in the eyes of many and increase dis-
respect for law and law enforcement. The fact that prosecutions
under such laws are by and large the only method of controlling
the conduct in some areas, argues strongly for repealing the
laws against such conduct, and use of these laws to impose uni-
formity of life style is flatly repugnant to individual freedom.
Such laws are thus beginning to be held unconstitutional as
impossibly vague, because they permit "government by the
moment-to-moment opinions of a policeman on his beat," and
are hence a violation of due process. 60 What laws will remain
after this constitutional exorcism to provide the necessary police
discretion to maintain an appropriate degree of tranquillity, is
perhaps not as clear now as it should be.
CONCLUSION
The problem of "overcriminalization" is a sensitive one, and
some will be offended by the ideas aired in this chapter. Many of
us continue to embrace the myth that we are one homogeneous
group of like-minded people. We maintain the illusion that we
share with simple societies the agreed-upon values that are time-
honored and sacred.
But it is abundantly clear that this perspective of America is
false. Instead of consensus, we have a rich variety of value sys-
tems and ways of life. Instead of agreement with much of the
legislation passed by law-makers, we have deep felt resentment
towards any interference with ways of life that some groups
hold sacred. Instead of concerted effort to bring members of the
community into line with the laws enforced by prosecutors and
police, we have significant groups of persons supporting the law-
breaking of their members and seeing the attempt to change
their behavior as interference with their rights as citizens and
human beings.
None of us can escape the fact that American society has be-
come increasingly pluralistic. Until we recognize this fact and
take it into account in the way we attempt to implement meas-
ures of social control, our effort to achieve social order will too
often continue to be self-defeating.
The Problem of "Overcriminalization" 567
The criminal law is society's most drastic tool for regulating
conduct. When it is used against conduct that a large segment of
society considers normal, and which is not seriously harmful to
the interest of others, contempt for the law is encouraged. When
it is used against conduct that is involuntary and the result of
illness, the law becomes inhumane. When it becomes a means for
arbitrary or abusive police conduct, it can cause hostility, tension
arbitrary or abusive police conduct, it can cause hostility, ten-
sion, and violence.
Repeal of many such laws is overdue. Where the laws merely
attempts to enforce a particular set of moral values, simple
repeal is usually justified. Where, on the other hand, a social evil
such as drunkenness is involved, other methods, more apt to
resolve social problems, are needed to substitute for the repealed
laws. And where the problem in enforcing the law arises pri-
marly from the attitudes of police, as with disorderly conduct
statutes, it should be dealt with by changing those attitudes
through training or different recruitment policies, rather than by
repeal or by judicial voiding of the underlying statutes.
REFERENCES
1. Schwartz, Book Review, 21 Stan. L. Rev. 1277, 1278 (1969).
2. See Packer, "Copping Out," New York Review of Books, Oct. 12, 1967,
at 17.
3. See especially Herbert L. Packer, The Limits of the Criminal In Sanc-
tion (Stanford: Stanford University Press, 1968) ; Sanford H. Radish,
"The Crisis of Overcriminalization," 374 Annals 157 (1967).
4. Much of the discussion immediately following is drawn from writings
by Sanford Kadish, author of two major articles outlining the problem
of "Overcriminalization." See the President's Commission on Law En-
forcement and Administration of Justice, Task Force Report: The
Courts (Washington, B.C.: Government Printing Office, 1967), ch. VIII;
and "The Crisis of Overcriminalization," supra note 3.
5. Thurman Arnold, The Symbols of Government (New York: Harcourt,
Brace & World, 1935), at 160.
6. See, e.g., B.C. Code, Title 22, Ch. 11.
7. See, e.g., B.C. Code, Title 22, Ch. 20.
8. See, e.g., B.C. Code, Title 22, Ch. 33.
9. Packer, supra, note 3, at 296.
10. The phrase is common police jargon. See Arthur Neiderhoffer, Behind
the Shield: The Police in Urban Society (Garden City, N.Y.: Bouble-
day & Co., Inc., 1967), at 71.
11. See Skolnick and Woodworth, "Bureacucracy, Information and Social
Control: A Study of a Morals Betail," in The Police: Six Sociological
Essays, ed. by Bavid J. Bordua (New York: John Wiley & Sons, 1967),
at 99.
12. Paul Chevigny, Police Power (New York: Pantheon Books, 1969), at
141, 158.
13. Ralph F. Salerno, "Organized Crime and Violence" (a consultant
paper prepared for the Commission.)
568 Report of the Task Force on Law and Law Enforcement
14. Id.
15. Packer, supra note 3, at 62.
16. See Chevigny, supra note 12; Report of the President's Commission on
Crime in the District of Columbia (Washington, D.C.: Government
Printing Office, 196), at 208.
17. See Chevigny, supra note 12, at 30-50.
18. Kadish, "The Crisis of Overcriminalization," supra note 3, at 166; the
figure given is 35-40 percent.
19. Packer, supra note 3, at 306-312.
20. Id. at 312.
21. Report of the Committee on Homosexual Offenses and Prostitution
(The Wolfenden Report to Parliament) (1957) ; see also Kent, "The
Wolfenden Report and Its Consequences" (1968) (a consultant paper
prepared for the Commission).
22. Packer, supra note 3, at 331.
23. See Remarks of Prof. Frank Remington, Notre Dame Law School,
Feb. 12, 1968, reprinted in the Congressional Record, May 1, 1968
(daily ed.), at E3621.
24. Thomas C. Schelling, "Economics and Criminal Enterprises," Public
Interest, Spring, 1967, at 76.
25. Packer, supra note 3, at 353.
26. As for example, the liquor distributing industry immediately before
repeal of prohibition ( (organized crime) and immediately after (law-
ful industry). See Packer, "Copping Out," supra note 2.
27. Easter v. District of Columbia, 361 F. 2d 50 (B.C. Cir. 1966) (en
bane); Driver v. Hinnant, 356 F. 2d 761 (4th Cir. 1966). See Hutt,
"Perspectives on the Report of the President's Crime Commission
The Problem of Drunkenness," 43 Notre Dame Lawyer 857 (1968).
28. Easter v. District of Columbia, supra note 27.
29. Driver v. Hinnant, supra note 27.
30. See Peter Hutt, "The recent Court Decisions on Alcoholism," in Pres-
ident's Commission on Law Enforcement and Administration of Jus-
tice," supra note 4, Task Force Report: Drunkenness, at 114.
31. Id.
32. P.L. 90-452, 82 Stat. 618 (1968).
33. P.L. 90-452, Sees. 2, 4. [Emphasis added.]
34. Indeed, the foundation of these two decisions is Robinson v. California,
371 U.S. 905 (1962), holding that the Eighth Amendment prohibits
involuntary drug addiction from being made a criminal offense.
35. Packer, supra note 3, at 338.
36. The Marijuana Tax Act makes possession a felony subject to a penalty
of up to 10 years imprisonment for the first offense.
37. Roth v. United States, 354 U.S. 476 (1957).
38. Stanley v. Georgia, 37 U.S.L.W. 4315, 4318 (U.S. Sup. Ct., Apr. 7,
1969).
39. Id. at 4317. The decision relies upon Griswold v. Connecticut, 381 U.S.
479 (1965), which struck down, as repugnant to a constitutional
"right of privacy" deriving from the First, Fourth and Fifth Amend-
ments, statutes punishing the dispensing or use of birth control infor-
mation and devices.
40. Approximately 1,000 per month in the District of Columbia; 1967
Annual Report of the Metropolitan Police Department, at 45.
41. Most of the following discussion of police discretion is based on a paper
by Eric Smith, Police Discretion (1968). (Prepared for the Emergency
Justice Task Force, District of Columbia Commission on Administra-
tion of Justice Under Emergency Conditions).
42. For a review and classification of these statutes, see Wayne R. LaFave,
Arrest: The Decision to Take A Subject Into Custody (Boston: Little,
The Problem of "Overcriminalization" 569
Brown & Co., 1965), at 76-77. See also Goldstein, "Police Discretion
not to Involve the Criminal Process: Low Visibility Decisions in the
Administration of Justice," 69 Yale LJ. 543 (1960). In the District
of Columbia it is an offense if the officer should "neglect making an
arrest for an offense . . . committed in his presence." D.C. Code Sec.
4-143 (1961).
43. See Remington and Rosenblum, "The Criminal Law and the Legisla-
tive Process," 69 U. III. L.F. 481.
44. LaFave, supra note 42, at 89-94.
45. Id. at 145-46.
46. Oyler v. Boles, 368 U.S. 448 (1962).
47. Goldstein, "Police Policy Formulation: A Proposal for Improving
Police Performance," 65 Mich. L. Rev. 1123, 1146 (1967) ; Piliavin
and Briar, "Police Encounters with Juveniles, Differential Selection
of Juvenile Offenders for Court Appearances," in National Research
and Information Center, National Council on Crime and Deliquency
(1963).
48. LeGrande, "Non-Violent Civil Disobedience and Police Enforcement,"
58 J. Crim. L. 393, 401-02 (1967) ; Juby E. Towler, The Police Role in
Racial Conflicts (Springfield, 111.: Charles C. Thomas, 1964), at 3,
109-110. "If the law is on the books, he is sworn to enforce it."
49. Johnson, "A Sociological Interpretation of Police Reaction and Respon-
sibility to Civil Disobedience," 58 J. Crim. L. 405 (1967).
50. LeGrande, supra note 48 to 403:
"It is the policy of the St. Louis Police Department regarding racial
demonstrations that no direct police actions will be taken in the
absence of violence, orders of the court or emergency situations
wherein life or property is endangered . . . Generally in such in-
stances the officers assigned to the scene will be plainclothes person-
nel ... In the absence of violence or emergency, no action will be
taken unless warrants are issued. Under these conditions the officer
shall only observe the report existing conditions." Metropolitan Police
Department, St. Louis, Mo., Supplement One (Unpublished, 1963).
See also Chief Joseph Kimble, "Patience and Planning, the Key to
Controlling Demonstrations," Law and Order, at 72 (Sept. 1965).
51. See U.S. Commission on Civil Rights, Law Enforcement: A Report
on Equal Protection in The South (1965) at 173-175.
52. LeGrande, supra note 48 at 404, quoting Remington, "Social Changes,
The Law, and The Common Good," paper presented at the Tenth
Annual Institute on Police and Community Relations, East Lansing,
Michigan, Michigan State University (1964), at H-ll (mimeographed).
53. See, e.g., Goldstein, supra note 47: "Administrative Problems in Con-
trolling the Exercise of Police Authority," 58 J. Crim. L. 160 (1967) ;
Schwartz & Goldstein, Police Guidance Manuals (1968).
54. The President's Commission on Law Enforcement and Administration
of Justice, supra note 4, The Challengge of Crime in a Free Society,
at 106.
55. Schwartz and Goldstein, Police Guidance Manuals (PGM No. 7)
(1968) ; Government of the District of Columbia, Metropolitan Police
Department, Guidelines applicable to the enforcement of Sections 22-
1107 and 22-1121 of the District of Columbia Code (Disorderly
Conduct) (July 11, 1968).
56. Washington Post, Apr. 17, 1969, at B9.
57. M. F. Ashley Montagu, " On the Physiology and Psychology of Swear-
ing," 5 Psychiatry 189, 199 (1942).
58. Quoted in E. Stengel, Hughlings Jackson's Influence in Psychiatry,
109 Brit. J. Psychiat. 348-355 (1963). See also, e.g., Karl Menninger,
The Vital Balance (New York: Viking Press, 1963), at 137-138.
570 Report of the Task Force on Law and Law Enforcement
59. See, e.g., Clark v. Associated Retail Credit Men of Washington, D.C.
70 App. D.C. 183, 185, 105 F.2d 62, 64 (1939) :
"For the sake of reasonable freedom of action, in our own interest
and that of society, we need the privilege of being careless whether
we inflict mental distress on our neighbors."
60. Ricks v. United States, U.S. App. D.C. 20919 (Dec. 23, 1968) (slip
op. 7) ; United States v. McClough, District of Columbia Court of
General Sessions (Grim. N. 929-69B, Mar. 7, 1969).
CHAPTER 24
PROBLEMS OF THE CORRECTIONS SYSTEM*
They's a guy in McAlester lifer. He studies all the
time. He's secretary of the warden writes the war-
den's letters and stuff like that. Well, he's one hell of a
bright guy an' reads law an' stuff like that. Well, I
talked to him one time about her, 'cause he reads so
much stuff. An' he says it don't do no good to read
books. Says he's read ever' thing about prisons, now,
an' in the old times. An' he says she makes less sence to
him now than she did before he starts readin. He says
its a thing that started way to hell an' gone back, an'
nobody seems to be able to stop her, an' nobody got
sence enough to change her. He says for God's sake
don't read about her because he says for one thing
you'll jus' get messed up worse, an' for another you
won't have no respect for the guys that work the gov-
er'ments. 1
The problem of acquiring an effective system of corrections is
a critical part of any program to improve our institutions of
criminal law enforcement. The police can and must be improved
to prevent crime and apprehend a larger percentage of offenders.
The courts can and must be improved to handle the criminal
charges arising from larger number of arrests and to develop a
more reasoned approach to sentencing. But unless the corrections
systems are also changed the whole process may only turn out to
be self-defeating.
The criminal law process is preoccupied with stopping crime
and catching and convicting as opposed to rehabilitating crimi-
nals. Once a criminal is caught and tried and incarcerated, public
interest tends to wane despite the fact that the convicted criminal
is likely eventually to be released to commit further crimes. As
Chief Justice Warren E. Burger recently noted, "There must be
* This chapter was prepared by David P. Stang, based in part on con-
sultant papers by Herbert F. Costner, Linda R. Singer, and Vincent I.
O'Leary.
571
572 Report of the Task Force on Law and Law Enforcement
some way to make our correctional system better than the revolv-
ing door process ... of crime, prison and more crime." 2
This chapter will sketch the inadequacies of our nation's
prisons and jails and the sometimes shocking conditions which
exist in many of them. It will also discuss some of the remedial
measures which might be adopted to remove degrading condi-
tions and to improve our prisons and jails so that they can begin
to realize their stated goal of rehabilitating offenders.
Most of what we have to say is not new, the problem of cor-
rections including sociological and treatment aspects having
been presented in comprehensive detail by the Corrections Task
Force of the President's Commission on Law Enforcement and
Administration of Justice as well as treated extensively in
the report of the Violence Commission's Task Force on Indi-
vidual Acts of Violence. Perhaps, however, there is also value in
a briefer treatment that emphasizes, as this chapter does, our
failure even to achieve minimum levels of humane treatment in
some of our prisons and jails.
THE INABILITY OF CORRECTIONS TO CORRECT
We begin by noting what few persons would dispute : that
because of shortages of trained personnel and suitable facilities,
prisons in this country have never adequately performed their
correctional function. A look back at the old times in comparison
with the new times reveals that prisons are substantially un-
changed insofar as they still serve as little more than cages with
time locks on their doors. Before the eighteenth century, prisons
were used not to punish but to detain the accused until the
debtor paid his debt, the rapist was castrated, the thief's hands
were cut off, or the perjurer's tongue was torn out. In 1786,
the Quakers in Pennsylvania instituted incarceration as a hu-
mane alternative to hanging and torture. In an effort to have
prisoners do penitence for their sins, the Quakers locked con-
victs in solitary cells until they died or were released. So many
died or went insane that in 1825 New York's Auburn Prison
introduced the practice of hard labor performed in silence. Until
quite recently, American prisons relied almost entirely on the
Auburn system of shaved heads, lockstep marching, and degrad-
ing toil, and locked prisoners in huge isolated pens that
soothed the public's fears of escapes. 3
In essence, prisons historically were intentionally horrible
places where prisoners received their "just due." As Richard
McGee so persuasively phrased it:
. . . The idea of retributive punishment is deeply rooted in
the minds and emotions of mortal man. This attitude, and
this simple atavistic impulse to punish and overpunish of-
Problems of the Corrections System 573
fenders, remains the central trunk of the administration of
criminal justice throughout the world. 4
The old stone walls have refused to crumble. Prison buildings
were built most sturdily, and it has been difficult to secure their
replacement. Today there are 25 prisons in the United States
over 100 years old. These institutions perpetuate the old theories
around which they were constructed. As an example, the Bureau
of Prisons operates a federal prison in Sandstone, Minn., in a
virtual wilderness between Minneapolis and Duluth. The institu-
tion was authorized in 1933, when northern Minnesota was a
center for the activities of bootleggers. Sanford Bates, who was
at that time the Director of the Bureau of Prisons, decided to
"put one up there where they are coming from." But by the time
the prison had been built, prohibition had been repealed, and,
according to the present Director, "there we had an institution
16 miles from anywhere, where it gets pretty cold in the winter. 5
No less appalling than the physical structure and condition of
our nation's prisons is the number and caliber of employees on
their staffs, and worse yet is the unbalanced allocation of staff
personnel to offenders. Approximately 1.3 million people are
under correctional authority in the United States. Of these, only
one-third are in institutions; the other two-thirds are supervised
in the community on probation or parole. But the ratios of staff
and costs are inverse to these proportions : only one-fifth of the
money and one-seventh of the staff are engaged with the two-
thirds of the offenders who are in the community. 6
Of the more than 121,000 people employed in corrections in
1965, only 24,000, or 20 percent of the staff, had any connection
with rehabilitation. 7 The other 80 percent merely guarded the
426,000 incarcerated offenders. A glance at the ratios of the 20
percent of the staff supposedly charged with the objective of
rehabilitation to offenders is suggestive of the reason for their
difficulties. The following statistics were compiled as a result of
a special study conducted by the Joint Commission on Correc-
tional Manpower and Training. 8
Number of inmates
Position per staff person
Classification worker 365
Counselor 758
Psychiatrist 1,140
Psychologist 803
Physician, surgeon 986
Social worker 295
Teacher:
Academic 104
Vocational 181
Vocational rehabilitation counselor 2,172
574 Report of the Task Force on Law and Law Enforcement
Clearly, these figures reveal the almost impossible task facing
rehabilitative personnel: their caseload is simply overwhelming.
The lopsided allocation of funds budgeted to correctional insti-
tutions also reveals our outdated approach to the handling of
prisoners. In 1965, $435 million was expended for the operation
of institutions for adult offenders. According to the President's
Crime Commission, 'The bulk of this . . . was spent to feed,
clothe and guard prisoners." 9 Comparatively little was expended
for rehabilitative purposes.
The Corrections Task Force of the President's Crime Commis-
sion in 1967 tabulated the numbers of persons actually employed
by correctional authorities in various job categories and esti-
mated how many additional such personnel would be required if
improvement in our nation's prisons was to become a reality.
The Corrections Task Force reported that 63,184 custodial per-
sonnel and group supervisors were employed, but that 89,600
were needed; 2,685 caseworkers in prisons were employed, but
that 10,200 were needed; 14,731 caseworkers in community based
corrections were employed, but that 44,800 were needed; 6,657
specialists such as vocational and academic teachers, psychol-
ogists, and psychiatrists were employed, but that 20,400 were
needed. The Corrections Task Force then projected manpower
requirements for 1975 which amounted to a total of 304,000 cor-
rectional personnel, an increase of 172,837 when compared to the
121,163 actually employed in 1965. 10 These jobs persently are
not being filled to within even a fraction of requirements.
These prison statistics, depressing as they are, are nowhere
near so deplorable as those associated with our nation's jails,
local workhouses and other misdemeanant facilities. As one
Crime Commission consultant put it:
Most counties and cities persist in operating their own
jails, nearly all of which are nothing more than steel cages
in which people stay for periods of time up to a year. Most
of the jails are custody-oriented and supervised by ill-
trained, underpaid personnel. In some cases, the institution
is not manned except when a police officer on duty can look
in once during his eight hour shift. 11
It is rare to find any rehabilitative program being conducted
by our jails. In fact, less than three percent of the total staff of
our nation's 3,500 jails have any rehabilitative responsibilities.
Those few persons who are engaged in such programs are pre-
posterously overloaded with case assignments. A Crime Commis-
sion study revealed these ratios between rehabilitative staff and
inmates in jails and other local misdemeanat institutions: 12
Problems of the Corrections System 575
Position
Number
Ratio of staff
to inmates
Social workers
167
1-846
Psychologists
33
1:4 282
Psychiatrists
58
1:2,436
Academic teachers
106
1:1,333
Vocational teachers
137
1*1 031
Custodial officers
14,993
1-9
Not only are our Nation's prisons and jails understaffed, but
the existing staffs are undertrained both before acceptance for
employment and after reporting for work. With respect to cus-
todial workers alone, the Corrections Task Force of the Presi-
dent's Crime Commission found that they are
undereducated, untrained and unversed in the goals of cor-
rections. Unless salaries are raised, substantial improve-
ments cannot be expected in the kind of people who can be
recruited. 13
The average prison guard is paid only between $3000-$4000 a
year. Parole and probation officers, on the average, are paid as
little as $5000-$6000 a year. With respect to management and
other rehabilitation specialists, the Corrections Task Force as-
serted, their "salaries fail to attract and retain enough capable
personnel and act as a ceiling on the salaries of all subordi-
nates." 14
One might think that intensive inservice training programs
would be in existence to attempt to bridge the gap between edu-
cational requirements and actual educational attainment of cor-
rectional personnel. Surveys, however, have shown that this is
not the case. The following data reflect that less than half of our
correctional systems have any inservice training programs at all. 15
Systems Systems
reporting reporting No
programs programs
Type of system Number Percent Number Percent
Probation and parole systems
359
44
448
56
Correctional institutions
197
59
137
41
Total
556
585
The favorite scorecard which critics use to demonstrate the
results of the manifold inadequacies of the corrections system is
the recidivism rate. There are no completely reliable statistics
on the extent of recidivism, but it has been estimated that about
30 to 80 percent of the offenders released from correctional insti-
576 Report of the Task Force on Law and Law Enforcement
tutions are reimprisoned within five years, often for crimes more
serious than those for which they were incarcerated originally. 16
As the Crime Commission concluded :
For a great many offenders . . . corrections does not corect.
Indeed experts are increasingly coming to feel that the con-
ditions under which many offenders are handled, particu-
larly in institutions, are often a positive detriment to
rehabilitation. 17
That something else may be wrong with prisons, however,
other than their failure effectively to prevent recidivism, is too
often overlooked by all concerned. Almost the entire emphasis
of correctional critics today is on the fact that the inadequacy of
the resources committed to prison systems insofar as they relate
to rehabilitation : the prison buildings are not suited for rehabili-
tation, the staffs are not large enough nor well enough trained to
accomplish rehabilitation, the allocation of funds expended by
correctional institutions is not designed primarily to achieve the
objective of rehabilitation. All this is true, of course but there
is another point as well.
Inherent in most prisons is an environment in which vicious
and brutal degradation of inmates regularly takes place. The
existence of this environment, in and of itself, deters the realiza-
tion of treatment objectives. First, the degradation of prisoners
prevents the possibility of their rehabilitation, even in the rare
situations where the necessary rehabilitative resources are avail-
able. Second, in situations where rehabilitative resources are
unavailable, degradation tends only to further dehabilitate.
Knocking down a man is no way to build him up. And kicking
a man when he is already down, can never build him up. That
prisons knock men down and then often kick them besides, is
amply demonstrated by the following tales of horror.
THE HORROR OF CORRECTIONS
The judges and the district attorney in Philadelphia recently
showed the courage to order an investigation of the incidence of
sexual assaults in local correctional institutions. The investiga-
tors from the District Attorney's Office and the Police Depart-
ment concluded that sexual assaults are endemic in the Phila-
delphia prison system. The report estimated that during the 26-
month period under investigation there were approximately
2,000 sexual assaults, involving approximately 1,500 individual
victims and 3,500 individual aggressors in Philadelphia prisons.
The investigators found that virtually every slightly built young
man commited to jail by the courts many of them merely to
await trial is sexually approached within hours of his admission
Problems of the Corrections System 577
to prison. Many young men are overwhelmed and repeatedly
"raped" by gangs of inmate aggressors. 17
One inmate described an attack as follows:
I was laying in my bed when seven or eight inmates came
to my bed, pulled the blanket off me, put it on the floor and
told me to pull my pants down and lay face down on the
blanket. I said, "No" and was punched in the face by one
of the inmates. The inmate that punched me stated if I did
not get on the floor the other inmates would gang up on me.
I got on the floor and my pants and shorts were pulled
off. Two inmates spread and held my legs apart while two
more inmates held my hands in front of me. While I was
being buggered from behind another inmate would make
me suck his penis. This continued until all the inmates had
attacked me and I heard one of them say it was 1:30 a.m.
so let's go to bed. They put me on the bed, covered me with
the blanket and one of them patted me on the behind saying
good boy we will see you again tomorrow night.
While I was being molested I was held by the neck and
head and threatened with bodily harm if I yelled or
screamed. They stated that they would beat my head on the
floor if I made any outcry. 18
This event was by no means a unique episode in the Phila-
delphia investigation. The District Attorney of that city in testi-
money before the Senate Subcommittee to Investigate Juvenile
Delinquency read this statement of a seventeen year old youth
who at the time of his victimization had been charged but not
tried or convicted of the offense of being a runaway:
I was in the cell at 1801 Vine when four Negro boys
started bothering me for not having underwear on. Then
when we got on the Sheriff's van and started moving they
told everyone that I didn't have on underwear as the van
was moving they started getting close to me. One of them
touched me and I told them to please stop. All of a sudden
a coat was thrown over my face and when I tried to pull it
off I was viciously punched in the face for around ten min-
utes. I fell to the floor and they kicked me all over by body
including my head, and my privates. They ripped my pants
from me while five or six of them held me down and took
turns fucking me. My insides feel sore and my body hurts,
my head hurts, and I feel sick in the stomach. Each time
they stopped I tried to call for help but they put their hands
over my mouth so I couldn't make a sound. While they held
me, they burned my leg with a cigarette. When the van
stopped at the prison, they wiped the blood from me with
578 Report of the Task Force on Law and Law Enforcement
my shirt. They threatened my life and said they would get
me in Dl if I told what happened. They said if they didn't
get me in Dl they'd get me in the van again. When the door
opened they pushed me to the back so they could get out
first. At first, I told the guard I tripped and fell but thought
I better tell the truth. I pointed out those who beat me up
so bad the doctor looked at me and said I'd have to go to the
hospital. They took pictures of my bruises on my body and
I can just about breathe because my nose and jaw seem to
be broken in many different places. I was asked by the
lieutenant to write what happened and this is exactly what
happened.
The Philadelphia report, shocking to anyone unfamiliar with
the conditions in American prisons, is no news to professionals
in the field who realize that an honest report on the county jails
in numerous other parts of the country would reveal the same
thing. 19
Even before a grand jury was summoned to investigate the
scandalous conditions in Chicago's Cook County Jail, 20 the jail
superintendent conceded publicly that deviate sex practices, the
beating of inmates by other inmates, smuggling of contraband
and other vicious practices were routine in the jail. And a large
portion of the men and women, boys and girls who were crowded
into this institution had not yet even been convicted. 21 Interviews
with 36 ex-inmates of the Cook County Jail revealed the follow-
ing facts:
Eight of the 36 ex-inmates were victims of beatings, some
badly, with concussions, fractures, etc.
About 75 beatings were reportedly seen by inmates.
Some inmates said that there was about one beating each
day.
Four of 36 ex-inmates admitted that they were victims of
sexual attacks.
About 75 sexual attacks were seen or heard.
About a dozen guards were reported as being involved in
trafficking of drugs.
Reported generally: "You can get all of the pot' (mari-
huana) wanted if you have the money."
Eight incidents of burning were reported as being seen
or involved in by inmates interviewed, and
Four inmates were reportedly set on fire.
Former staff and inmates reported homosexuals were
shaved by staff and inmates. The use of iodine to paint
heads of such inmates reportedly has been discontinued. One
youth was dry shaved by two inmates reportedly, leaving
many cuts on his head. 22
Problems of the Corrections System 579
One lawyer who has conducted extensive investigations of
prison conditions wrote to this Commission: "The commonest
denominator in all prisons is to take the dignity of the prisoner
away, creating in him an abhorrence of rules of ordered society,
of law enforcement, of every basic tenet of a civilized society." 23
Not all such practices involve physical brutality among in-
mates. A more subtle form can be seen in the results of unneces-
sary solitary confinement. Dane White, aged 13, an Indian boy
of Browns Valley, Minn., in a state of depression resulting from
41 days of isolation hanged himself on November 17, 1968, with
his belt in a county jail. A report conducted by the Attorney
General of Minnesota indicated that Dane White had expressed
an intention to hang himself. The jail officials, however, were not
sufficiently attentive to their duties to have perceived such a
possibility.
Almost as depressing as solitary confinement is the opposite
extreme of overcrowding. A prisoner's hostility often cannot be
contained when he is thrust in a cell with so many other people
that he must fight for space on the floor to sleep, let alone be
accorded the simple comfort of a bed.
A recent report on the adult detention facilities in San Fran-
cisco revealed that the maximum capacity of the City Prison is
437 plus 50 females. At time during 1968 the population in that
institution exceeded 600 rising once to over 900 last December.
At that time only 200 mattresses were on hand, and 200-300
inmates were forced to sleep on steel springs or on the concrete
floor. The recommendations of that report with respect to the
City Prison suggest what life at that institution must be like:
That toivels be provided to inmates who wish to shower
or wash daily. At present, inmates are permitted to shower
weekly. Men wishing to wash in the interim are forced to
use paper towels. . . .
That inmates be deloused and showered if they are de-
tained in excess of 48 hours.
That inmates be provided jail clothing when detained in
excess of 48 hours. This law is currently ignored.
That new inmates be given clean blankets, and that the
laundering of these blankets be increased from every three
months to monthly. Complaints have been received that due
to the high population of City Prison, blankets are often
transmitted from inmate to inmate without the benefit of
fumigation or laundering.
That an adequate number of benches and tables be pro-
vided for the "dayroom" holding cell of the Women's
Unit. . . , 24
Despite overcrowding in the San Francisco prison, authorities
580 Report of the Task Force on Law and Law Enforcement
still feel compelled to maintain certain cells for solitary confine-
ment, which are referred to by inmates as "the hole." On August
30, 1968, staff members of the San Francisco Committee ob-
served inmates Richard Haudel and Clark Dunning in Isolation
Cell 4, County Jail 1 :
Inmate Dunning, obviously mentally ill, had been placed
in this cell for "singing too loudly." Inmate Haudel was
semiconscious on the floor bleeding from what appeared to
be a split lip. He was incoherent, barely able to stand, and
seemed to be under the influence of drugs. He had been
placed in the cell following booking earlier that day and had
not been seen by a physician. Inmate Dunning had been in
the cell for three days and had not seen a doctor in that
time. However, a previous medical report bore the evalua-
tion "psycho." 25
Asserting that they were not merely bleeding hearts, the Com-
mittee members cautioned that
We do not feel that jails should be "hotels" or that prison-
ers should be "coddled," but we feel that punishment alone
has not provided a satisfactory result. To be effective, con-
trol must be accompanied by treatment and rehabilitation so
that when a prisoner is released, he is less apt to commit
another crime than when he went into custody. Those of us
on this Committee who have heard groans, smelled the
odors, seen the hate and despair, know that this is not the
case in San Francisco. 26
City and county jails by no means have a monopoly on degra-
dation and violent animality. The following passage, written for
this Commission by a volunteer worker who for several years
has seen first hand the conditions which exist inside a youth
reformatory, illustrates this failure as exhibited in one institu-
tion:
Inmates live in cell-blocks. These are relatively clean,
well-lighted, and reasonably well-ventilated. Yet they deny
the inmate the smallest degree of privacy. The net impres-
sion is that of caged people in a human zoo including the
smells of the zoo, in spite of the ventilation.
Within the formal social structure there is an extensive
and powerful informal social structure created by the in-
mates. The staff is careful to see that members of city gangs
are split up in cell-block and work assignments. Cliques are
built, then, within the natural boundaries of cell-block and
work assignments, and are indigenous to the prison (and, in
many cases self-perpetuating; the clique will outlast the
Problems of the Corrections System 581
clique-members who created it). Prison cliques, like city
gangs, center around natural leaders. Power struggles
within and between cliques sometimes erupt in physical
beatings. Much more often, however, they take the form of
sexual exploitation. Homosexual relationships are very com-
mon, but they have much less to do with sexual gratification
than with informal status. Homosexual rape is the ultimate
prison humiliation for the victim and the ultimate achieve-
men for the aggressor.
Aside from clique structure and inter-clique rivalries, the
most important component of the informal social structure
is race. Racial tensions are so very high that only the con-
stantly present threat of custodial retaliation prevents the
institution from being engaged in a continual race riot. The
Black slogan is, of course, "Black Power." One hears it;
sees it cut into school desks; finds it scrawled in library
books. The Whites have no slogan, but they do have a
symbol the swastika and since there are virtually no Jews
in the institution, the hatred it stands for is directed exclu-
sively at Negroes. White inmates have it tattooed on their
bodies, carve it into desk tops, scrawl it in their books-
accompanied by such epithets as "Nigger-ass bastards."
Race hatreds occasionally find outlets in beatings, but again
it is sexual exploitation that is the most common form of
aggression.
The prison staff does what it can to contain racial aggres-
sion, but their own preconceptions are painfully obvious.
They will explain that they separate the smaller inmates
from the physically mature to prevent the small white boys
from becoming sexual bait for the full-grown Negroes, but
it does not occur to them that small Blacks may need pro-
tection from the bully whites.
Joseph R. Rowan, Executive Director of the John Howard
Association of Illinois, was referring to youth reformatories
when he said in testimony on March 6, 1969, before the Senate
Subcommittee to Investigate Juvenile Delinquency :
If someone suggested that we treat delinquents like
animals, a lot of people would raise their eyebrows. ... In
many places throughout the country they have done a better
job in meeting standards for the care and treatment of
animals in zoos than we have for the care of [delinquent]
children.
Seldom does one hear of a zoo keeper torturing one of his
animals to death. But such things have happened, and still are
happening, in our nation's prisons and youth reformatories. Not
582 Report of the Task Force on Law and Law Enforcement
long ago such an incident took place in a Louisiana state indus-
trial school where officials beat one juvenile to death with leather
straps. 27
In a recent report on the Mississippi Delta region correctional
institutions, these were the words used to describe some of the
activities of the prison guards:
Archaic and brutal instruments for the maintenance of
discipline and the meeting of work quotas, flogging, isola-
tion, and a variety of "unofficial" techniques [beating with
chains, blackjacks, belts, electrical tortures . . .] were
employed to an extent and for reasons which would have
given pause to the least sensitive of the old plantation over-
seers. 28
In the Angola Prison in Louisiana there were [F] loggings
and lengthy confinement to underground dungeons, com-
plete absence of any rehabilitation program; unspeakable
living conditions filthy barracks, spoiled food . . . long
hours of backbreaking labor in the cornfields and on the
levees; armed convict guards who were rewarded for shoot-
ing "escapees"; political corruption, and an uncontrolled
amount of preversion which kept men awake nights to
protect themselves against sexual assault. 29
The Tucker Farm is an Arkansas prison. A report concern-
ing this institution was made public by Governor Winthrop
Rockefeller in January 1967. A section of that report described
a method of torture known to the inmates as the "Tucker tele-
phone", consisting of:
[A]n electric generator taken from a ring- type telephone
placed in a sequence with two drywell batteries, and attached
to an undressed inmate strapped to the treatment table at
Tucker Hospital, by means of one electrode to a big toe
and the second electrode to the penis, at which time a crank
was turned sending an electric charge into the body of the
inmate.
During the investigation which culminated in the above quoted
report, an instrument of this description was found in a linen
closet in the superintendent's home. 30
The report also gave the following account of an incident of
brutality involving an Arkansas prison superintendent and his
inmate cohorts:
LL-33 stated that he and three other prisoners were
planning to escape because of the treatment and not enough
food. He stated they were all "slapped" around by three
inmate yardmen, because they would not give them money.
Problems of the Corrections System 583
He stated that a line rider found out about the escape and
brought them to the superintendent who whipped them
with the "hide" on the buttocks with their pants down,
and on the back and head. He further hit them with his
fists and kicked them. The superintendent then left the
building and told the riders to work them over real good.
One rider got four others to help him beat them up. He
stated that they came into the building with "blackjacks,"
wire pliers, nut crackers, and knives. He stated that they
stripped all the clothes off of LL-33 and the rider stuck
needles under his fingernails and toenails. They pulled his
penis and testicles with wire pliers and kicked him in the
groin. Two riders ground out cigarettes on his stomach
and legs. One rider squeezed his knuckles with a pair of
nut crackers. He stated that they worked on him all after-
noon, and the next day, he was put out in the field and made
to go to work. He stated he was unable to work, and they
put him in the hospital and would not let anyone see him
until he healed up.
Such forms of prison discipline are not confined to southern
prisons. In the words of an eyewitness:
One Midwestern prison I visited had concrete blocks in
a dungeon to which troublesome inmates were chained
naked; the dungeon was next to the prison generators and
hummed and vibrated intermittently, a total body massage
equivalent of the Chinese water torture. Several inmates
told me that those not made docile by the chains in the
dungeon were subsequently given multiple electroshock
therapy "treatments" on the upper floor of the infirmary
building. 31
In the California penal system, one prisoner
[S]howed that during his eleven-day confinement in a 6'
by 8'4" "strip cell," he was not adequately protected from
the wet weather; he was deprived of all items by which he
might maintain bodily cleanliness; he was forced to eat
the meager prison fare in the stench and filth caused by
his own vomit and body wastes; he could wash his hands
only once every five days, and he was required to sleep
naked on a stiff canvas mat placed directly on the cold
concrete floor. 32
Recent investigations of the Dodd Committee revealed that
in the state penitentiary at Columbus, Ohio prisoners who "talk"
when ordered not to are put naked into unlighted, solitary
"strip-cells" which contain no sanitary facilities. According to
584 Report of the Task Force on Law and Law Enforcement
the Committee staff, prisoners there are served rations only once
a day. When they need to have bowel movements, they are told
to defecate on a piece of paper then slide it under the slit near
the bottom of the cell door. The prisoners in the strip cells are
issued only one single sheet of tiolet tissue a day. Prisoners can
urinate only on the floor of their cell. The Dodd Committee staff
also states that no detailed records are kept at the Columbus
prison which explains the cause of death of prisoners who die
while incarcerated.
The Dodd Committee staff investigations of the state peni-
tentiary at Richmond, Va., have revealed the existence of condi-
tions similar to those at Columbus. Prison officials at the
Richmond prison told the committee staff that the reason that
one inmate remained in an unheated solitary cell for 85 days
was that "he liked it there and did not want to leave."
That such uncivilized treatment of prisoners in penal institu-
tions is not wholly confined to state and local facilities is borne
out by the following report :
Authorities at Lewisburg federal penitentiary are using
the threat of homosexual rape to intimidate young Selective
Service violators who protest against what they consider
oppressive prison regulations.
The prison authorities flatly deny any such policy.
But at least four draft resisters, all in their early 20s
have been threatened since the first of the year with assign-
ment to "the jungle" two of the penitentiary's dormitories
where known homosexual attackers are quartered.
Three of these COs were actually assigned to "the
jungle"; one was sexually assaulted by at least three differ-
ent inmates March 19 and had to be taken to the Lewisburg
prison hospital.
The situation has become so serious that the prison's
psychiatrist, Dr. Wolfram Reiger, and its chief psychologist,
Dr. Karl Elnig, indicated at a recent staff meeting that they
would bring the matter to the attention of higher author-
ities in Washington if this policy is not abandoned. 33
Other documented acts of official mistreatment of prisoners
by correctional personnel have included the forcing of prisoners
to lie naked on concrete cell block floors at temperatures of 40 ; 34
necessitating prolonged exposure of prisoners to primitive plumb-
ing encrusted with filth; 35 the arbitrary withholding of food,
indiscriminate clubbings by guards, and repeated use of tear
gas. 36
The experience of offenders while they are in prison is obvi-
ously important and often decisive, to their future conduct after
they are released. Instead of reducing the incidence of violence
Problems of the Corrections System 585
in American society, however, our prisons often actually con-
tribute to it. They can sometimes amount, as has been said, to
'Vocational training in hate, violence, selfishness, abnormal sex
relations, and criminal techniques." 37 The administrator of a
state correctional system has likened the prison to the ghetto
as a crime-generating environment:
It is my feeling that correctional institutions generally
have contributed to violence in exactly the same way that
ghettos have made their contribution; through all of the
demeaning characteristics of the ghetto or the institution.
The correctional institution takes people who particularly
need a sense of self -pride, self-respect, and self -dignity ; and
instead of providing opportunity for growth of these per-
sonal characteristics it regiments, represses and demeans
the individual in countless ways. 39
CRUEL PUNISHMENT AND THE
FAILURE OF THE COURTS
Before we can begin talk meaningfully about "rehabilitation,"
we must be sure that psychological counseling and recreation
programs, represent something more than a half -hour breather
from subjection to an overwhelming atmosphere of degradation
and dehumanization. Even if one does not agree that a sub-
stantially greater share of public moneys should be spent on
prison rehabilitation programs, still one cannot argue that con-
ditions of the kind that we have discussed in the previous sec-
tion should not be swiftly and vigorously eliminated. Yet they
persist today, and they persist in the face of these plain, clear
words of the Eighth Amendment to our Constitution:
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment has been interpreted by the Supreme
Court to mean "that punishments of torture . . . and all others
in the same line of unnecessary cruelty, are forbidden." 39 The
basic principle underlying that Amendment is, in the words of
Chief Justice Warren, "nothing less than the dignity of man/' 40 It
is designed, he further commented, as a "basic prohibition against
inhuman treatment. 41 One legal scholar, interpreting the Chief
Justice's remarks in the Trop case, stated the principle in these
terms :
. . . even the most loathsome criminal, justly convicted of a
heinous offense by due process of law, has a moral claim
upon the society which has condemned him: his humanity
must be respected even while he is being punished. The
586 Report of the Task Force on Law and Law Enforcement
State must not deny what is undeniable: that this man,
though condemned, is still inalienably a man. To fail to treat
him as a human being is to commit a new crime and to cause
the shadow of guilt to fall on those who punish as well as
on him who is punished. 42
Our courts have from time to time stated the principle of
humane prison treatment but they have not, by and large,
effectively applied it.
Due process, it would seem, is another right that prisoners are
entitled to enjoy. During the past two decades the U.S. Supreme
Court, by virtue of the due process clause, has championed the
rights of hundreds of thousands of persons, many of whom,
ironically, are now in prison. The Court has vigorously applied
the fundamental fairness concept of the due process clause to
preconviction procedures.
Through the due process clause, the privilege against self-
incrimination, protection against illegal search and seizure,
the right to a speedy trial, the right to commpulsory process,
the right of confrontation and cross-examination . . . right
to counsel, and the right to a jury trial, all have been made
applicable to the states. 43
It is unfortunate that the Supreme Court, after having leaned
over backwards to ensure due process to so many hundreds of
thousands of criminal defendants, seems like most everyone else
to have failed at "thinking about what comes next." Perhaps,
however, the Court may yet bring the Eighth Amendment's ban
on cruel punishment back to life by means of the due process
clause. Mr. Justice Douglas once commented that "Due process,
to use the vernacular, is the wild card that can be put to such
use as the judges choose." 44 One leading legal scholar in the field
of correctional law recently noted, perhaps prophetically,
Thus far, the judges have not often played their wild card
in encounters with the correctional process. These encoun-
ters are increasing, and with the 'wild card* available, it is
important that the courts understand what values are
sought to be protected by due process norms, to estimate
if current procedures achieve these values, and, if not, how
best to correct and remodel them. 45
Judge Sobeloff, U.S. Court of Appeals of the Fourth Circuit, in
an opinion 46 condemning the laxity of Virginia prison officials in
granting wholesale discretion to untrained lower-rank personnel
in the administration of disciplinary cell blocks, observed that
the courts are not called upon and have no desire to lay down
detailed codes for the conduct of penal institutions. But he
stressed that courts have the duty to act when men are unlaw-
Problems of the Corrections System 587
fully exposed to the capricious imposition of added punishments.
Surely the courts also had no desire to formulate codes of con-
duct for the police and prosecutors. But they have been vigor-
ously doing so with their Fourth, Fifth, and Sixth Amendment
decisions for the past 20 years, much to the chagrin of some
police and some prosecutors. The time is long overdue for a
parallel development in the area of corrections, where a virtually
uncontrolled discretion continues to exist, and there are signs
that this development has begun.
Parents of an incarcerated youth who was beaten to death by
prison personnel were awarded damages by a Louisiana court. 47
The Supreme Court has construed the Federal Tort Claims Act
to be applicable to federal prisoners. 48 Nineteen such suits have
been successfully brought by prisoners with awards ranging
from $750 to $110,000. 49 The Civil Rights Act has been used by
state prisoners with increasing results. The Supreme Court has
agreed to hear argument in the case of John T. Willingham v.
Daniel Morgan, a damage suit brought by an inmate who has
claimed prison injuries. Mandamus, injunctive relief, declaratory
judgments, and even contempt for violation of the order of the
court "to keep and hold safely" the prisoner are tools increas-
ingly available to lawyers to use in solving old but yet uncor-
rected problems.
Fred Cohen has summarized the challenge to the courts in
these words:
The basic hurdle is the concept of a prisoner as a non-
person and the jailer as an absolute monarch. The legal
strategy to surmount this hurdle is to adopt rules and pro-
cedures that permit manageable diversity, thereby maximiz-
ing the prisoner's freedom, dignity, and responsibility. More
particularly, the law must respond to the substantive and
procedural claims that prisoners may have, as a consequence
of their conviction and confinement, claims relating to the
maintenance of contact with institutions and individuals in
the open commmunity and claims relating to conditions
within the institution. 50
This challenge must be met by the law by the courts and by the
bar if our prisons are to stop being, as they too often now are,
training camps for every kind of human viciousness.
ALTERNATIVES TO INCARCERATION
If our correctional facilities routinely fail to correct the inmate
and sometimes actually degrade him, then it is obviously wise
policy to avoid incarcerating offenders to the extent that the
safety of society permits. There are several stages in the crimi-
588 Report of the Task Force on Law and Law Enforcement
nal justice system of which alternatives to incarceration present
themselves.
Prevention of needless incarceration of arrestees is the goal
of two projects sponsored by the Vera Institute of Justice. The
Manhattan Summons Project since mid-1967 has been in effect
in every police precinct in New York City. The purpose of the
project is to avoid, when possible, incarceration following the
arrest of suspects prior to trial. The operation of the summons
procedure is relatively simple. After arrival at the stationhouse
the arrestee is informed of the opportunity of being interviewed
to determine if issuance of a summons may be substituted for
the arrest process. If the defendant consents, he is interviewed
by the arresting officer to ascertain his roots in the community.
Various criteria are used to determine the adequacy of the de-
fendant's roots. Upon verification of these roots, the defendant
is issued a summons and released.
During the first year of citywide operation of this project,
21,426 defendants potentially eligible for a summons were
brought before desk officers. Of these, 14,232, or approximately
66 percent, were issued summons. The remainder of cases which
were not summonsed were divided between the 2,367 defendants
who failed to qualify and the 4,827 who refused to be inter-
viewed. As of June 30, 1968, of those persons required to appear
in court for arraignment, only 638 failed to appear. This repre-
sents a "jump" rate of only 4.5 percent.
The second Vera program is the Manhattan Court Employ-
ment Project, which has been funded by the U.S. Department of
Labor. Its purpose is to screen, counsel, and place in jobs or job
training defendants from the Manhattan Criminal Courts. The
underlying assumption of this project is that a person with a
job that he likes, which offers him some future advancement, is
less likely to risk his economic state in the community through
criminal activity than one who is not so employed.
At the time of arrest, a person is in need of and usually recep-
tive to many kinds of help. He may require temporary welfare
assistance, medical attention, counseling for himself and his
family, vocational advisory service, skill training, remedial edu-
cationand a job. All these needs can be met by one or more
public and private agencies currently operating in New York
and most other cities. Rather than duplicate any existing serv-
ices, the Project marshalls the diverse services required by a
participant, making them readily available and assisting him to
get the maximum benefit from them.
By early April 1969, the Manhattan Court Employment Proj-
ect had been in operation 14 months, with a total of 594 partici-
pants up to that date. The project works with defendants for
an average of 4i/> months each and has recommended dismissal
Problems of the Corrections System 589
of charges for 36 percent, with almost all recommendations
being accepted by the court. Both the court and the district
attorney have shown increasing confidence in the project, as
made clear by their willingness to allow defendants charged with
more serious crimes to participate. In its early months, the
project took only defendants charged with misdemeanors and
few with more than minimal prior records, whereas 40 of the
100 most recently accepted participants were felons, and an equal
number had prior criminal records.
Another opportunity to avoid incaraceration arises at the sen-
tencing stage in the criminal justice process, when the judge
(or other sentencing authority) decides whether to imprison the
convicted offender or to place him on probation. A number of
difficulties are associated with this decision. First is the judge's
need for a good presentence investigation on the offender. But
the National Survey of Corrections showed in 1965 that pre-
sentence investigations were available only in approximately 61
percent of the cases of juveniles who were placed on probation
or sent to juvenile institutions ; among adult felony offenders the
proportion was 66 percent; while for misdemeanants sentenced
to jails or placed on probation, presentence investigations were
available in less than 20 percent of the cases. Moreover, the in-
vestigations which are made often do not contain adequate infor-
mation. In too many cases, judges are asked to make the critical
decisions between prison or probation blindfolded.
Furthermore, the effective use of probation for supervising
offenders in the community instead of incarcerating them is
severely limited by a lack of facilities. Only 31 states have pro-
bation services for juveniles available in every county. In one
state, only two counties have juvenile probation services. A child
placed on probation in the other counties is assumed to be adjust-
ing satisfactorily until he is brought back to court on a new
charge. Probation services for misdemeanants also are rare. Con-
sequently, those offenders who are most likely to benefit from
supervision in the community frequently must be sent to insti-
tutions (or allowed to remain in the community with no super-
vision) .
Even where probation services are available, intensive treat-
ment of offenders in the community requires a high ratio of
staff to offenders (although not so high as the ratio required in
institutions). However, the Crime Commission found that the
present caseloads of probation officers prevent them from per-
forming their functions effectively. Instead of the current 14,700
probation and parole officers employed in the country; 44,800
are needed if screening services are to be provided and if case-
loads are to be reduced to an average of 35 per officer. 51
Experiments have shown that with improvements in personnel
590 Report of the Task Force on Law and Law Enforcement
probation can be used successfully for far more offenders than
currently are sentenced to community supervision. In Saginaw
County, Mich., a demonstration project increased the number
and qualifications of members of the probation staff. At the same
time, the court began to use probation much more liberally. The
result of the experiment was that the rate of violations of the
conditions of Drobation was reduced by almost one-half. 52 In
California, a Community Treatment Project established by the
Youth Authority has been experimenting with intensive treat-
ment in the community for youths sentenced by the courts to
institutions. The success rate of project participants has been
significantly higher than that of their counterparts sent to
institutions. 53
Even with greatly increased ratios of staff to offenders, com-
munity treatment is much less expensive than incarceration. In
1965, it cost an average of $3,600 a year to keep a youth in a
training school. It cost less than one-tenth of that amount to
keep him on probation. Even allowing for the substantial im-
provements required to make community programs more effec-
tive, they are less costly than incarceration. Thus, in an effort
to reduce the costs of supporting inmates in state prisons, the
California Legislature authorized the payment of subsidies to
the counties for each offender placed on probation instead of
being sent to a state institution. Between July 1966, when the
Probation Subsidy Program went into effect, and July 1968, the
state saved approximately $10.5 million in the first 2 year of the
program's operation. 54
Finally, parole represents another alternative to incarcera-
tionin this case, an alternative to further incarceration. But
again we are confronted with the inadequacies of personnel and
facilities. For example, the Crime Commission's Report en-
couraged the establishment of residential community centers to
which offenders could be referred after their release from cor-
rectional institutions, the purpose of such centers being to enable
residents to adjust gradually to their families, their jobs, and
their responsibilities as citizens. Nonetheless, the number of
people actually served by such centers is de minimis. In New
York City, for example, 40 people are housed in a Federal Com-
munity Treatment Center, and 16 others are at a local youth
center. Aside from some narcotics centers, there are no other
halfway house facilities in the city. Yet facilities of this kind
and new approaches to supervision seem mandatory if parole is
to work. Simply adding parole officers will not improve parole
services. Some of the most disappointing experiments in this
regard were carried out in California several years ago. 55 Case-
loads were cut substantially but research indicated that little
change in parole revocation rates resulted. Having more time
to do the same thing does not result in improvement.
Problems of the Corrections System 591
Quite different results occurred in another experiment which
tailored the treatment program to the individual offenders.
Youths were then assigned to caseloads in which a parole officer
was responsible for no more than 10 to 12 offenders. 56 After 5
years of study, it was found that those treated in differential
treatment caseloads of small size had a revocation rate of 28 per-
cent. A comparable randomly assigned group who went through
a standard institutional program followed by supervision in the
community in conventional undifferentiated caseloads had a
revocation rate of 52 percent.
An important part of this program, besides the employment
of a classification system and small caseloads, was the use of a
program center which served as a recreational and counseling
facility and sometimes as a place for short-termed detention for
some offenders in danger of serious violations of their parole.
The use of centers of this kind, in which offenders generally live
at home while receiving treatment during the day has been
shown to have considerable promise in several studies. 57 Their
chief program component has been group counseling of a highly
confronting nature. Used in conjunction with a well-designed
parole program, these alternatives to incarceration seem to be
appropriate vehicles for the treatment of many violence-prone
offenders because of their accessibility to the community under
controlled conditions.
In considering parole, it is worth bearing in mind that the
alternative of continued incarceration usually means eventual
release with no supervision of any kind. Statistics from the
Federal Bureau of Prisons indicate that about 35 percent of the
persons released from prison annually are released with no
supervision at all. Among misdemeanants over 92 percent of all
inmates released from jails are simply turned loose at the expira-
tion of their sentence with no assistance or control in the com-
munity. 58 Data are not available on the kinds of offenders
released by parole rather than by outright discharge. Most
correctional administrators contend, however, that those offend-
ers who are most likely to fail have a lower probability of being
paroled and thus are most likely to be released with no super-
vision at all.
REHABILITATION PROGRAMS IN INSTITUTIONS
If adequate funds were to be made available to the corrections
system, it would become possible to implement the many current
recommendations for programs designed to rehabilitate incar-
cerated offenders. Public safety will always demand the isolation
of substantial numbers of violent offenders, and there is no
reason other than lack of national will, why rehabilitation and
592 Report of the Task Force on Law and Law Enforcement
incarceration must continue to be two mutually exclusive goals.
Without in any way attempting to treat the question of reha-
bilitation in detail, we do wish to point out a few examples of
the kinds of programs that the corrections system could have if
the nation wanted it that way.
Educational and vocational training for prisoners was one
of the area of corrections examined by the Crime Commission,
and it is an area that is usually considered important in con-
nection with the rehabilitation of the antisocial violent offender
who is identified with a delinquent subculture. The Crime Com-
mission had the following recommendations:
Correctional institutions should upgrade educational and
vocational training programs, extending them to all inmates
who can profit from them. They should experiment with
special techniques such as programed instruction.
States should, with Federal support, establish immediate
programs to recruit and train academic and vocational
instructors to work in correctional institutions.
States should work together and with the federal Govern-
ment to institute modern correctional industries programs
aimed at rehabilitation of offenders through instilling good
work habits and methods. State and Federal laws restrict-
ing the sale of prison-made products should be modified or
repealed. 59
Under an adequate vocational training program for our cor-
rectional institutions, the offender would be permitted a reason-
able degree of freedom to demonstrate his abilities and choose
the vocational area in which he is most interested. A uniform
job placement test would also be administered to all offenders
concerning whom vocational training is judged to be one impor-
tant mode of individualized treatment. Once interest and ability
are ascertained, the offender ideally would be transferred in an
institution specializing in the teaching of that particular skill.
The training process would make every effort to stimulate real
working conditions, including the payment of reasonable wages.
Of course, out of these wages, the inmate should be required
to pay for room and board in the institution and whatever other
services or products he feels a need for, including medical and
psychiatric treatment.
Major state and federal prisons would coordinate their voca-
tional training efforts so that each institution specialized in
teaching one specific skill. For the small number of institutions
which presently teach a skill for which there exists an economic
demand, the costs of maintaining modern equipment usually pre-
clude effective training in other vocational skills. Thus, even if
an offender is assigned to an institution where a useful and
Problems of the Corrections System 593
challenging vocation is effectively being taught, he currently
must learn that skill whether or not he has interest and ability
to do so.
A National Prisoner Savings and Loan Association would be
chartered and a compulsory inmate savings program would be
instituted in which at least a proportion of all earnings would
be set aside to help meet post-release expenses. 60 .
As a logical extension of the coordinated vocational training
program, there is no reason why the specialized skills being
taught at several of the institutions could not be academic ones.
A specified number of major institutions could develop educa-
tional centers for the teaching of grade school, high school, and
college level subjects. To be effective, such academic training
programs would (1) carefully select only those who can benefit
more from concentrated academic, as opposed to vocational, edu-
cation (although learning in one area is not necessarily incom-
patible with learning in the other) ; and (2) require each
selected participant to study over a period of minimum duration
which has as its goal the attainment of a specified academic
objective (e.g., a grade school or high school equivalent educa-
tion, the equivalent of one year in junior college ,etc.).
The vocational-educational system would offer some imagina-
tive new programs of the kind that are currently being experi-
mented with. One such program is that of Harold Cohen and
his associates who in 1965 initiated a pilot program of "educa-
tional therapy" at the National Training School for Boys. 61 The
program is built on the theory of reinforcement and consists
essentially of providing a facilitative environment and rewards
meaningful to the inmate for learning tasks beginning at his
level of capability. Conditions existing in the economic reality
of society, including associated rewards and frustrations, were
incorporated in the prison setting.
In practice, the program provides boys in the training schools
with an opportunity to acquire points each point being worth
one cent by completing programmed lessons is academic subj-
ects, presented by teaching machines, and by passing examina-
tions on these materials. The money thus acquired may be used
to buy meals more desirable than standard institutional fare,
recreational privileges and opportunities, soda, snacks, cigarettes,
and other things of value. Peer reinforcement is encouraged
and achieved by bringing an exceptional performance to the
attention of other inmates; achievement is also visible to fellow
inmates in the "standard of living" that an inmate is able to
afford by virtue of points he has earned.
Conventional classroom procedures are absent since classroom
experiences have been unrewarding for most of the inmates
approximately 90 percent of whom were school dropouts before
594 Report of the Task Force on Law and Law Enforcement
being committed to the training school. Each student proceeds
at his own pace, but the motivation generated by the prospect
of an immediate and valued payoff keeps the pace typically
rapid. An inmate reports to the teacher only after he has
mastered a lesson; hence, he can be reinforced not only in points
but also in social response. Cohen comments:
We might state then, using emotional terms, that he
gains a sense of pride and dignity both with his own per-
formance which came about out of being correct (above
90 percent level of performance) , and being able to show
this success to another human being. Correctness starts to
pay off in both points, new skills and successful relationships
with people. . . . When a student moves further into the
curriculum, we replace the machine with the human being
as the main giver of reinforcement. This schedule of a
direct human relationship between the student and the
teacher is brought about not by a prescribed 1/2 hour meet-
ing set in advance but by a program need, sequenced and
placed by the student's own learning behavior. 62
The total program is thus geared to demonstrating that the
investment of effort in learning pays off in ways that can be
immediately and directly appreciated. The basic concept of the
program is thus not punitive although an inmate may be
"deprived" relative to other inmates if he makes no effort and
it is not the approach of casework although an inmate may
"buy" various services, including counseling, if he has acquired
sufficient resources through his own efforts to do so and if that
is the way he chooses to spend his points. The foundation of
the program is thus the substitution of a meaningful reward
system for the conventional reward system that has failed to
reach these youths or to which they have failed to respond.
This program has not been in operation long enough to have
yet generated data on the post-release performance of the boys
who have participated. The effects on inmates in the institution
are, however, definitely encouraging. Academic achievement
among youths commonly regarded as impossible or difficult to
teach has been markedly improved. Furthermore, students have
made progress in 'social and attitudinal behaviors" as well as
academically.
These newly acquired educational skills act as a program
which reinstates in the young deviant the promise that he
can be "normal." "Normal" in this case means that he can
be successful in an area where he formerly was unsuccess-
ful and, furthermore, that this success will provide him
with the ticket to reenter the mainstream of the American
Problems of the Corrections System 595
adolescent world the public school system and the choice
of opportunities follow. 63
CONCLUSION
The President's Crime Commission concluded its treatment of
corrections by observing that "the ineffectiveness of the present
system is not really a subject of controversy." The report of
the Violence Commission's Task Force on Individual Acts of
Violence also bears this out, as do the many excellent reports
published by the Joint Commission on Correctional Manpower
and Training. The existence of inhumane conditions in many of
our prisons and jails is perhaps more controversial, but to the
extent that such conditions exist, the need for national action
is even clearer. Men of goodwill may dispute the amount and
kinds of investments which we should be making in the reha-
bilitation of offenders, but none can defend our failure to respect
the Eighth Amendment's prohibition of cruel punishment of
offenders.
In testimony before this Commission, Myrl. E. Alexander,
Director of the Federal Bureau of Prisons, urged that we under-
score the need for implementation of the Crime Commission's
recommendations for improving the correctional system. He
referred to the Crime Commission's call to the federal govern-
ment to assume a far larger share of the responsibility for
providing the impetus and direction to needed changes, and he
estimated we could profitably quintuple within 5 years the $1
billion now being spent on corrections at the federal, state,
county and municipal levels. In the jails, workhouses, peniten-
tiaries and reformatories of this country we receive, control and
release an estimated 3 million persons annually: our national
investment is woefully inadequate to the task of protecting
society against further crimes by these offenders.
REFERENCES
1. John Steinbeck, Grapes of Wrath.
2. Speech before the American Bar Association's Annual Convention in
Dallas, Texas, Aug. 11, 1969.
3. See President's Commission on Law Enforcement and Administration
of Justice (hereinafter cited as the Crime Commission), The Challenge
of Crime in a Free Society (Washington, D.C.: Government Printing
Office, 1967), at 162; Richard A. McGee, "What's Past is Prologue,"
381 Annals 1.
4. McGee, id. at 3.
5. Testimony of Myrl Alexander before the Violence Commission, Oct.
30, 1968.
6. Crime Commission, Task Force Report: Corrections, at 1.
596 Report of the Task Force on Law and Law Enforcement
7. Crime Commission, The Challenge of Crime in a Free Society, at 162.
8. Joint Commission on Correctional Manpower and Training Second
Annual Report, 1967-68 (Washington, D.C., 1968), at 2-3.
9. Crime Commission, Task Force Report: Corrections, at 5.
10. Id. at 96-99.
11. Id. at 75.
32. Id.
13. Id. at 95
14. Id.
15. Herman Piven and Abraham Alcabes, "Education, Training and Man-
power in Correction and Law Enforcement," Source Book II, in Service
Training, U.S. Dept. of Health, Education, and Welfare, (1966) at
3, 139.
16. Crime Commission, The Challenge of Crime in a Free Society, at 159.
17. Allen J. Davis, Report on Sexual Assaults in the Philadelphia Prison
System and Sheriff's Vans (Philadelphia, 1968), at 3.
18. Id. at 1.
19. Bruce Jackson, "Our Prisons Are Criminal," New York Times Maga-
zine, Sept. 22, 1968, at 62.
20. See Bill Davidson, "The Worst I've Seen," Saturday Evening Post,
July 13, 1968, at 17-22.
21. Id.
22. App. D to the testimony of Joseph R. Rowan Before the Senate Sub-
committee to Investigate Juvenile Delinquency, Mar. 6, 1969.
23. Letter from Philip J. Hirschkop to Commission on Violence, Aug. 22,
1968.
24. The Advisory Committee for Adult Detention Facilities for the City
and County of San Francisco, Annual Report (1969), at 3-5.
25. Id. at 25.
26. Id. at 2.
27. Lewis v. State, 176 So. 2d 718, 729-730 (La. App. 1965).
28. Southern Regional Council, Special Report-The Delta Prisons: Pun-
ishment For Profit (Atlantic: Southern Regional Council, 1968), at 3.
29. Id. at 5-6.
30. Id. at 17.
31. Bruce Jackson, "Our Prisons Are Criminal," New York Times Maga-
zine, Sept. 22, 1968, at 57.
32. Fred Cohen, The Legal Challenge To Corrections: Implications for
Manpower and Training (Washington, D.C. : Joint Commission on Cor-
rectional Manpower and Training, 1969), at 73.
33. "Discipline by 'Rape' at U.S. Prison," National Catholic Reporter,
Apr. 23, 1969, at 6.
34. Roberts v. Peppersack, 256 F. Supp. 415, 419 (D. Md. 1966).
35. Wright v. McMann, 387 F. 2d 519, 521 (2d Cir. 1967).
36. Landman v. McMann, 370 F. 2d 135, 137-138 (4th Cir. 1966). Our reci-
tat : on of nrison violence could be lengthened. For more examples of
documented cases, see Hirschkop and Milleman, "The Unconstitution-
ally of Prison Life," 55 U. Va. L. Rev. 795 (1969).
37. California Youth and Adult Corrections Agency, The Organization of
State Correctional Services and the Control and Treatment of Crime
and Delinquency (1967), at 152.
38. Letter from Paul W. Keve, Commissioner of Corrections, State of
Minnesota, to the President's Commission on the Causes and Pre-
vention of Violence, Oct. 9, 1968. See also John P. Conrad, "Violence
in Prison," 364 Annals 113 (Mar. 1966), for an evaluation of the
working restraints preventing violence in American prisons. The in-
cidence of violence is represented as relatively low in consideration
Problems of the Corrections System 597
of the potential of a "violent culture" such as to be found in the
prison environment.
39. Wilkerson v. Utah, 99 U.S. 130, 135-136 (1878).
40. Trop v. Dulles, 356 U.S. 86, 100 (1958).
41. Id.
42. Note, "Revival of the Eighth Ammendment : Development of Cruel
Punishment Doctrine by the Supreme Court," 16 Stan. L. Rev., 966-1000
(1964).
43. Cohen, supra note 32, at 12.
44. William O. Douglas, "The Bill of Rights Is Not Enough," 38 N.Y.U.L.
Rev. 207, 219 (1963).
45. Cohen, supra note 32.
46. Landman v. Peyton, supra note 36.
47. Lewis v. State, supra note 27.
48. Cohen, supra note 32, at 74.
49. Id.
50. Id. at 65.
51. Crime Commission, Task Force Report: Corrections, at 97.
52. Paul W. Keve, Imaginative Programming in Probation and Parole
(Minneapolis, Minn., 1967), at 55.
53. Goldfarb, Problems in the Administration of Justice in California
(Report to the California Legislature, Feb. 1, 1969), at 45.
54. California Department of Youth Authority, Probation Subsidy Pro-
gram, (unpublished report, Aug. 1968).
55. "Special Intensive Parole Unit, 15-Man Caseload Study," California
Department of Corrections, Division of Adult Parole, Sacramento,
Calif. (Nov. 1956), and "Special Intensive Parole Unit, 30-Man Case-
load Study," California Dept. of Corrections, Division of Adult Parole,
Sacramento, Calif. (Dec. 1958).
56. See Margueriet Q. Warren, et al., "Community Treatment Project,
5th Progress Report," Califronia Youth Authority, Sacramento, Calif.
(Aug. 1966).
57. For a full discussion of such projects, see Lamar T. Empey, "Alter-
natives to Incarceration" (Washington, D.C. : Department of Health,
Education, and Welfare, Office of Juvenile Delinquency, 1967).
58. U.S. Department of Justice, Federal Bureau of Prisons, "Prisoners
in State and Federal Institutions for Adult Felons, 1966," National
Prisoner Statistics (Washington, D.C. : Government Printing Office,
Aug. 1968), at 29.
59. Crime Commission, Task Force Report: Corrections, at 53-55.
60. See the more detailed recommendations in ch. 13, "The Correctional
Response," in the report of this Commission's Task Force on Crimes
of Violence.
61. Harold Cohen, "Educational Therapy: the Design of Learning En-
vironment," 3 Research in Psychotherapy 21-53 (1968).
62. Id.
63. Id. at 29.
599
TASK FORCE ON LAW AND
LAW ENFORCEMENT
CONTRIBUTORS
Richard Bonnie
Jose Luis Cuevas
William A. Dobrovir
Jon Ellertson
Dorsey D. Ellis, Jr.
Joseph P. Fitzpatrick, S.J.
Daniel J. Freed
Monrad G. Paulsen
David J. Saari
Shlomo Shoham
Arthur B. Shostak
Assistant Professor
University of Virginia Law
School
Charlottesville, Virginia
Mexico City, Mexico
District of Columbia Bar
Department of Political
Science
Massachusetts Institute of
Technology
Cambridge, Massachusetts
Professor
University of Iowa
College of Law
Iowa City, Iowa
Professor of Sociology
Fordham University
New York, New York
Professor of Law
Yale University Law School
New Haven, Connecticut
Dean
University of Virginia Law
School
Charlottesville, Virginia
Director
Court Management Study
Washington, D.C.
Director
Institute of Criminal Law and
Criminology
Tel Aviv University
Tel Aviv, Israel
Associate Professor
Department of Social Sciences
Drexel Institute of Technology
Philadelphia, Pennsylvania
600
CONTRIBUTORS
Linda R. Singer Associate
Kurzman and Goldfarb
Washington, B.C.
Judith Toth Washington, B.C.
Ralph W. Tyler Birector Emeritus
Center for Advanced Study in
the Behavioral Sciences
Stanford University
Stanford, California
Patricia M. Wald Bistrict of Columbia Bar
Robert F. Wald Bistrict of Columbia Bar
Charles Whitebread Professor
University of Virginia Law
School
Charlottesville, Virginia
Ronald A. Wolk Vice-President
Brown University
Providence, Rhode Island
CONSULTANTS
Henry J. Abraham Professor of Political Science
University of Pennsylvania
Philadelphia, Pennsylvania
Jeffrey Albert George Washington Univer-
sity
Law School
Washington, B.C.
Herbert E. Alexander Birector
Citizens Research Foundation
Princeton, New Jersey
Francis A. Allen Bean of the Law School
University of Michigan
Ann Arbor, Michigan
Gerald Anderson Bepartment of Political
Science
Colorado State University
Fort Collins, Colorado
Bavid H. Bayley Graduate School of Inter-
national Studies
University of Benver
Benver, Colorado
601
CONSULTANTS
Timothy James Bloomfield
Alfred Blumstein
Albert Bottoms
Paul L. Briand
Jerome Carlin
William Chambliss
Samuel Chapman
Karl 0. Christiansen
Christine Clark
Thomas A. Clingan, Jr.
George A. Codding
Associate
Hogan and Hartson
Washington, B.C.
Director, Urban Systems
Institute
School of Urban and Public
Affairs
Carnegie-Mellon University
Pittsburgh, Pennsylvania
Director
Operations Research Task
Force
Chicago, Illinois
Professor, English Depart-
ment
State University College
Oswego, New York
Director of Neighborhood
Legal Assistance Founda-
tion
San Francisco, California
Department of Sociology
University of California
Santa Barbara, California
Department of Political
Science
University of Oklahoma
Norman, Oklahoma
Institute of Criminology
Copenhagen, Denmark
Attorney
New York, New York
George Washington Univer-
sity
Law School
Washington, D.C.
Department of Political
Science
University of Colorado
Boulder, Colorado
602
CONSULTANTS
Fred Cohen
Henry Cook
Herbert L. Costner
Barbara Curran
Roger H. Davidson
Alan Dershowitz
Norman Dorsen
Martin Eden
Harvey Friedman
Warwick R. Furr
Albert C. Germann
Jean D. Grambs
University of Texas School of
Law
Austin, Texas
Community Action Programs
Office of Economic Oppor-
tunity
Washington, D.C.
Department of Sociology
University of Washington
Seattle, Washington
American Bar Foundation
Chicago, Illinois
Department of Political
Science
University of California
Santa Barbara, California
Harvard University School of
Law
Cambridge, Massachusetts
New York University Law
School
New York, New York
Associate
Sidley and Austin
Chicago, Illinois
Staff Attorney
Lawyers' Committee for Civil
Rights Under Law
Washington, D.C.
Associate
Kirkland, Ellis, Hodson,
Chaffetz and Masters
Washington, D.C.
Department of Criminology
California State College
Long Beach, California
Professor of Education
University of Maryland
College Park, Maryland
603
CONSULTANTS
John J. Guidici
J. Archie Hargraves
Jane Harmon
Robert Johnston
George Jones
Richard J. Kendall
Randolph C. Kent
Luis Lastra
L. Harold Levinson
Theodore Lowi
Thomas Lumbard
Donal MacNamara
Captain
Oakland Polce Department
Oakland, California
Professor
Chicago Theological Seminary
Chicago, Illinois
Visual Arts Division
Pan American Union
Washington, D.C.
Department of Social
Science
U.S. Military Academy
West Point, New York
Director
Task Force on Urban Educa-
tion
National Education Associ-
ation
Washington, D.C.
Associate
Shaw, Pittman, Potts, Trow-
bridge and Madden
Washington, D.C.
Sussex, England
Editor
Art of the Americas Bulletin
Washington, D.C.
College of Law
University of Florida
Gainesville, Florida
Department of Political
Science
University of Chicago
Chicago, Illinois
Assistant U.S. Attorney
Washington, D.C.
Professor
John Jay College
New York, New York
604
CONSULTANTS
Bernard W. Marschner
Donald Mclntyre
Theodore Miller
Charles Monson
George W. O'Connor
Vicent I. O'Leary
Irving Piliavin
Gustav Rath
The Rev. David Romig
Eugene V. Rostow
Arnold and Louise Sagalyn
Ralph F. Salerno
Vice-President, University
Affairs
Colorado State University
Fort Collins, Colorado
American Bar Foundation
Chicago, Illinois
Associate
Sidley and Austin
Chicago, Illinois
Associate Academic Vice-
President
University of Utah
Salt Lake City, Utah
Director
Professional Standards
Division
International Association of
Chiefs of Police
Washington, D.C.
School of Criminal Justice
State University of New York
Albany, New York
School of Social Work
University of Pennsylvania
Philadelphia, Pennsylvania
Director, Design Center
Technological Institute
Northwestern University
Evanston, Illinois
Brick Presbyterian Church
Rochester, New York
Professor of Law
Yale Law School
Yale University
New Haven, Connecticut
Arthur D. Little, Inc.
Washington, D.C.
Woodside, New York
605
CONSULTANTS
William A. Scott Department of Psychology
University of Colorado
Boulder, Colorado
The Rev. Donald W. Seaton, Jr. Director
Center City Hospitality
House
San Francisco, California
Jan Smith Department of Sociology
Princeton University
Princeton, New Jersey
Arlene Ulman Attorney
Chevy Chase, Maryland
Marvin G. Weinbaum Department of Political
Science
University of Illinois
Urbana, Illinois
ADVISORS
Silvia Bacon Department of Justice
Washington, D.C.
John Conrad Director of Research
Bureau of Prisons
Department of Justice
Washington, D.C.
Sanford H. Kadish Professor of Law
University of California
Berkeley, California
Yale Kamisar Professor
University of Michigan Law
School
Ann Arbor, Michigan
Herbert L. Packer Professor of Law
Stanford University
Stanford, California
Val Peterson Former Governor
State of Nebraska
James Q. Wilson Professor
School of Government
Harvard University
Cambridge, Massachusetts
606
RESEARCH ASSISTANTS
Dale L. Smith, chief assistant Robert Crittenden
Daniel J. Boyle Thomas R. Jolly
Thomas R. Callahan Susan Lipsitch
William Edward Callis John Lawrence Manning, Jr.
SECRETARIAL ASSISTANTS
Carol A. Honus, chief assistant Delores L. Hampton
Frances L. Adams R. Christine McKenzie
Mildred F. Dolan Cecelia Roots
Margaret S. Enright Martha Ann Younger
&U.S. GOVERNMENT PRINTING OFFICE: 1969 0365-660
TASK FORCE REPORTS
D VIOLENCE IN AMEflICA
Historical and Comparative
Perspectives
D THE POLITICS OF PROTEST
Violent Aspects of Protest
& Confrontation
D FIREARMS AND VIOLENCE
IN AMERICAN LIFE *
r D ASSASSINATION AMD
POLlttCAL VIOLENCE
D LAW AND ORDER
RECONSIDERED
INVESTIGATIVE REPORTS
D CHICAGO
D CLEVELAND
D MIAMI
D COUNTER-INAUGURAL
D SAN FRANCISCO S1ATE
COMMISSION REPORTS
D PROGRESSuREPORT TO
THE 4 PBSIDENT
D INtERfM STATEMENT ON
CAMPUS DISORDER .
D COMMISSION STATEMENT ON
FIREARMS & VIOLENCE
D COMMISSION STATEMENT ON
VIOLENCE IN TELEVISION
ENTERTAINMENT PROGRAMS
Open Library
